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EARLY  COURTS  OF  PENNSYLVANIA. 


THE  EARLY  COURTS 

OF 

PENNSYLVANIA 


BY      . 

WILLIAM   H.  LOYD 

OF    THE   PHILADELPHIA    BAR;    GOWEN    FELLOW  IN    THE    LAW 
SCHOOL    OF    THE    UNIVERSITY    OF    PENNSYLVANIA 


BOSTON 
THE   BOSTON   BOOK  COMPANY 

19  10 


T 
1910 


Copyright,  1910 
By  the   university  of   PENNSYLVANIA 


The  Riverdale  Press,   Brookline,   Boston,   Mass. 


''^. 


i  V 

M      > 

UNIVERSITY    OF    PENNSYLVANIA 
LAW   SCHOOL   SERIES 


NUMBER    2 


TI7  ACH  volume  in  this  series  has  been  made  a 
publication  of  the  School  of  Law  of  the 
University  of  Pennsylvania,  by  a  vote  of  the 
Law  Faculty.  The  authors  are  connected  with 
the  school  as  members  of  the  teaching  force, 
fellows,  or  graduate  students. 

The  object  of  the  University  is  to  promote 
the  scientific  study  of  legal  problems — histori- 
cal and  practical,  and  to  assist  in  the  improve- 
ment of  the  law. 


a'71841 


"  Yes,  you  have  shown  us  a  representation  of  freedom . 
True.  But  you  are  content  with  it  in  a  world  that  moves 
by  computation  some  considerable  sum,  upward  of  sixty 
thousafid  miles  an  hour.'' 

Dr.  Julius  von  Karsteg  tu  Hakky  Richmond 


PREFACE. 


This  account  of  the  early  courts  of  Pennsyl- 
vania is  the  outcome  of  some  lectures  delivered 
as  an  auxiliary  course  in  the  Law  School  of  the 
University  of  Pennsylvania.  Their  purpose  was 
to  describe  briefly  the  establishment  and  de- 
velopment of  the  courts  in  the  colonial  period. 
That  our  ancestors  should  have  expressed  such 
profound  admiration  for  the  common  law  while 
deviating  so  widely  from  it  in  practice,  must  have 
puzzled  many  who  have  not  learned  to  put  a 
true  value  upon  the  flights  of  forensic  oratory. 
History  alone  supplies  the  key,  and  colonial 
legal  history  has  not  received  the  attention  it 
deserves.  The  absence  of  reports,  the  destruc- 
tion of  many  records  and  the  inaccessibility 
of  those  that  have  been  preserved,  have  all 
contributed  to  discourage  work  in  a  field  usually 
abandoned  to  the  antiquarian.  But  as  American 
law  increases  in  importance,  the  story  of  its 
obscure  beginnings  will  require  careful  considera- 
tion. 


vi  PREFACE. 

The  earliest  emigrants,  caring  little  for  the 
common  law  except  those  principles  associated 
with  Magna  Charta,  stamped  their  peculiar 
notions  upon  our  jurisprudence  in  a  way  that 
the  second  and  more  conservative  generation 
of  colonists  was  unable  to  eradicate.  The 
Revolution,  and  the  constitutional  develop- 
ment that  followed,  concentrated  attention 
on  public  rather  than  on  private  law,  which  in 
many  of  the  States  has  been  allowed  to  develop 
haphazard,  along  the  lines  of  least  resistance. 
Before  it  will  be  possible  to  classify  and  discuss 
American  colonial  law  in  a  thorough  and 
scientific  manner,  much  preliminary  work  must 
be  done  in  local  fields,  and,  from  material  so 
collected,  there  may  be  derived  finally  a  rational 
account  of  our  legal  institutions. 

It  is  in  this  spirit  that  the  following  study  has 
been  prepared.  The  original  lectures  were 
undertaken,  at  the  suggestion  of  Dr.  William 
Draper  Lewis,  Dean  of  the  Law  School,  and 
material  sought  in  the  records  without,  at  first, 
a  sufficient  realization  of  their  lack  of  coherence. 
It  was  found  that  while  some  special  topics 
had  been  carefully  discussed,  and  while  others 
were  treated  incidentally,  in  works  having  a 
different  object  in  view,  there  was  no  concise 


PREFACE.  vii 

statement  of  the  origin  and  growth  of  the  courts 
and  their  jurisdiction  based  directly  on  the 
statutes  and  archives  of  the  commonwealth. 
Such  a  narrative,  it  was  thought,  might  prove 
useful  to  those  who  have  not  found  time  to 
become  acquainted  with  the  scattered  literature 
of  the  period  described.  The  treatment  is 
not  exhaustive;  that  would  be  impossible  in  a 
volume  of  this  size,  but  it  is  believed  that  the 
information  contained  will  be  found  accurate, 
as  it  is  based  on  a  careful  examination  of  the 
public  records.  While  the  labor  involved  was 
greater. than  anticipated,  the  result  by  no  means 
does  justice  to  a  deeply  interesting  topic. 

WILLIAM  H.  LOYD. 
BiDDLE  Law  Library,  May  10,  1910. 


NOTE. 

The  work  cited  as  Charter  and  Lav-'s  of  Pennsylvania  contains 
the  Duke  of  York's  Laws  and  the  Acts  of  Assembly  prior  to 
1700.  The  Statutes  at  Large  of  Pennsylvania,  as  published 
to  date,  begin  at  1700  with  Volume  II  and  end  at  1793  with 
Volume  XIV.  Compilations  of  the  laws  of  the  State  by  Dallas 
and  Smith  are  also  cited  for  acts  in  the  last  years  of  the  eighteenth 
and  early  years  of  the  nineteenth  centuries.  The  regular  series 
of  Acts  of  Assembly  which  begin  with  1800  are  cited,  according 
to  local  custom,  as  pamphlet  laws,  abbreviated  "P.  L."  The 
records  of  the  court  at  Upland  were  published  by  the  Historical 
Society  of  Pennsylvania  in  1860;  the  records  of  the  court  at 
New  Castle  by  the  Colonial  Society  of  Pennsylvania  in  1904. 
This  society  is  about  to  publish  the  records  of  the  courts  of 
Chester  County  which,  unfortunately,  are  not  yet  available 
for  reference.  For  the  convenience  of  the  general  reader, 
illustrations  have  been  taken  from  published  records,  when 
practicable,  rather  than  from  manuscript  sources.  The  dates 
are  given  just  as  they  appear  in  the  records  without  accounting 
for  the  discrepancies  due  to  the  reform  of  the  calendar  in  1752. 


CONTENTS. 

Chapter  I 
The  Courts  in  the  Seventeenth  Century        ...  1 

Chapter  II. 

The   Courts   in   the   Eighteenth    Century  Prior  to 

the  Revolution -     .     .     .       74 

Chapter  III. 

The  Courts  from  the  Revolution  to  the  Revision 

of  the  Civil  Code 122 

Chapter    IV. 
Equity  in  Pennsylvania 159 

Chapter  V. 
The   Register's  Court  and  the  Orphans'  Court     .     212 

Chapter  VI. 
The  Laying  Out  and  Opening  of  Roads  by  Viewers       241 


THE    EARLY    COURTS 

OF 

•  PENNSYLVANIA. 


CHAPTER  I. 


For  more  than  two  hundred  years  the  courts  of  prov- 
ince and  state  have  administered  justice  to  the  inhabi- 
tants of  Pennsylvania.  Created  under  the  peculiar 
conditions  surrounding  the  foundation  of  the  colony, 
subjected  to  numerous  legislative  experiments,  their 
organization  and  practice  present  many  peculiarities 
that  can  only  be  understood  by  a  reference  to  their 
history.  This  history  has  been  sadly  neglected  owing 
partly  to  the  paucity  of  material,  and  partly  to  lack 
of  interest.  The  founders  were  more  bent  on  develop- 
ing the  resources  and  organizing  the  administration 
of  the  great  territory  that  had  come  under  their  control, 
than  on  preserving  the  records  of  their  proceedings 
for  the  benefit  of  posterity,  while  their  immediate 
descendants,  living  in  an  uncritical  age  and  possessed 
with  a  passion  for  rhetoric  to  the  exclusion  of  history, 
carelessly  permitted  the  records  of  the  preceding  gen- 
eration to  be  scattered  or  ruthlessly  destroyed.  Docu- 
ments that  would  now  be  regarded  as  precious  memorials 
of  the  past,  and  that  would  throw  valuable  light  on 
our  early  institutions,  were  used  to  feed  the  fires  in 
the  old  courthouse.^     Fortunately,  sufficient  fragments 

•  Cromwell  v.  The  Bank,  2  Wallace,  Jr.  Reports,  569  (185.3), 
at  page  589. 


2       EARLY  COURTS  OF  PENNSYLVANIA. 

have  escaped  .and  found  their  way  into  the  collections 
of  individuals  and  societies  to  enable  us,  with  the  aid 
of  the  state  archives,  to  present,  if  not  a  picture,  at 
least  a  sketch  of  the  judicial  organization  and  procedure 
in  a  period  which  the  rapidity  of  our  national  develop- 
ment has  made  more  remote  in  thought  than  in  time. 

As  the  firs  ,  organized  settlements  in  th  territory  now 
ncluded  in  the  state  of  Pennsylvania  were  those  of  the 
Swedes  and  the  Dutch,  so  the  first  courts  of  justice 
were  established  under  their  auspices.  To  give  a  com- 
plete account  of  their  administration  would  involve  a 
ted  ous  narrative  of  the  political  vicissitudes  of  these 
unsuccessful  colonies,  which  never  developed  to  the 
point  of  establishing  lasting  institutions.  In  fact, 
throughout  their  stormy  history  the  judicial  and  execu- 
tive functions  of  the  various  governors  and  local  officials 
are   scarcely    distinguishable. 

The  first  Swedish  settlement  was  hardly  more  than  a 
trading  post,  and,  if  a  court  in  the  proper  sense  of  that 
word  existed,  it  must  have  been  established  by  the 
governor,  John  Printz,  who  arrived  at  the  colony  on 
the  Delaware  in  1643  with  instructions  to  "decide  all 
controversies  according  to  the  laws,  customs  and  usages 
of  Sweden"  and  in  all  other  things  to  "adopt  and  follow 
all  the  laudable  manners,  customs  and  usages  of  the 
kingdom  of  Sweden,"  the  crown  of  which  was  then 
worn  by  Christina,  the  daughter  of  the  great  Gustavus 
Adolphus. 

Printz  established  the  seat  of  government  on  the 
island  of  Tinicum,  but  he  must  have  found  his  duties 
onerous,  for  he  wrote  several  times  to  obtain  the  services 
of  a  learned  and  able  man  to  administer  justice  and 
attend  to  the  law  business.^     The  territory,  however, 

1  "I  have  several  times  solicited  to  obtain  a  learned  and  able 
man  to  administer  justice  and  attend  to  the  law  business." 
Report  dated  February  20,  1647,  to  the  West  India  Company. 
Records  of  Court  at  Upland,  Introduction,  p.  29;  V  Pennsylvania 
Archives  (2d  Series),  766. 


EARLY  COURTS  OF  PEXXSYLVANIA.       3 

passed  into  the  possession  of  the  Dutch  "West  India 
Company,  and  Swedish  law  ceased  to  be  a  factor  in  the 
development  of  Pennsylvania,  although  the  Swedes 
were  permitted  to  retain  their  own  magistrates,  under 
the  supervision  of  the  officials  of  their  conquerors.^ 

In  1655,  a  vice  director  hip  of  the  "South  River" 
was  created,  and  Jean  Paul  Jacquet,  a  former  agent 
of  the  company  in  Brazil,  was  appointed  to  the  office.^ 
Andries  Hudde,  who  had  for  some  years  managed  the 
earlier  Dutch  settlement  on  the  Delaware,  was  named 
as  secretary,  a  commissary  was  appointed,  and  these, 
with  two  others,  formed  a  council  for  general  adminis- 
tration, as  well  as  a  court  for  the  trial  of  civil  and 
criminal  cases,  with  right  of  appeal  in  all  important 
matters  to  the  director  and  council  in  New  Amsterdam. 
The  minutes  of  this  court  from  December,  1655,  to 
March,  1657,  have  been  preserved,  and  afford  some 
interesting  information  upon  the  methods  and  procedure 
of  the  Dutch  justices,  as  well  as  the  social  condition  of 
the  colonists.^  Actions  for  the  recovery  of  small  debts 
are  most  frequent  on  the  civil  side,  while  on  the  criminal 
side,  complaints  for  minor  breaches  of  the  peace  are 
the  principal  matters  disposed  of.  The  striking  features 
of  these  trials  are  the  mild  and  paternal  attitude  of  the 
court,  the  efforts  made  to  obtain  amicable  adjustments 
of  disputes,  the  merciful  treatment  of  offenders,  and 
the  leniency  to  unfortunate  debtors. 

The  following  case,  taken  from  the  minutes  of  the 
court,  July  7,  1656,  is  interesting  as  an  early  attempt 
to  apply  the  principles  of  set-off: — 

»  VII  Pennsylvania  Archives  (2d  Series),  511,  531.  This 
policy  seems  to  have  alarmed  the  home  authorities.  VII 
Pennsylvania  Archives  (2d  Series),  555. 

*  Hazard's  Annals  of  Pennsylvania,  205. 

3  New  York  Colonial  Documents,  Vol.  XII,  133. 


4       EARLY  COURTS  OF  PENNSYLVANIA. 

"Jan  Flaman  appears  before  the  council  against  the  wife  of 
Tobias  Willeborgh,  and  demands  payment  for  a  shirt  lost  by 
her,    the    defendant,    and    for    passage    from    the    manhattans 

hither,  viz. 

for  the  shirt 14 

for  her  passage  &  freight    16 

30 
The  defendant  says,  that  she  lost  on  the  voyage,  being  wrecked 
with  the  bark,  a  chest  containing  four  shirts,  one  coat  of  red 
duffel,  one  underwaist  coat,  and  a  powder  horn  with  copper 
mountings,  valued  by  her,  the  defendant  at  fl  28. 
Paid  to  plaintiff  in  money  fl    4 
From  above  fl.  28 

32 

The  defendant  is  told  that  the  freight  shall  be  set  off  against 
her  lost  goods;  in  regard  to  the  shirt,  she  is  ordered  to  pay 
plaintiff  four  guilders  15  stivers."  ^ 

A  case  heard  on  August  2,  1656,  gives  new  and  interest- 
ing grounds  for  a  continuance: — 

"Before  the  council  appeared  Jacob  Crabbe  against  Robert 
Martyn  and  complained  that  he  Robert  Martyn  had  shot  and 
killed  his,  the  plaintiff's  pig.  Defendant  answers  that  fourteen 
days  ago  he  entreated  the  plaintiff  to  pen  up  his  hogs  as  the  same 
did  great  damage  to  his  corn.  Plaintiff  upon  being  asked  what 
he  wanted,  answers,  'Payment  for  his  pig.'  It  was  proposed 
to  the  parties,  that  plaintiff  shall  take  the  pig,  as  it  is  still  living, 
but  that  if  it  should  die,  each  one  shall  keep  his  action  in  the  law 
unprejudiced.^ 

Perhaps  it  may  not  be  considered  out  of  place  to 
refer  to  a  case  tried  September  13,  1655,  in  New  Amster- 
dam as  illustrating  the  pleasant  side  of  judicial  office 
in  Knickerbocker  days: — 

"Jan  Hackius  Plf.  v/s  Jacob  van  Couwenhoven  Deft.  The 
Plf.  demands  paymands  of  1150  fl.  on  account  of  a  promissory 
note,  dated  July  1,   1655,  payable  in  beer  and  distilled  liquors. 

1  New  York  Colonial  Documents,  Vol.  XII,  149. 

2  New  York  Colonial  Documents,  Vol.  XII,  150. 


EARLY  COURTS  OF  PENNSYLVANIA.       5 

Deft,  says  his  beer  is  ready.  Plf.  denies,  that  the  beer  is  ready, 
and  enquires  if  it  be  allowable  to  mix  strong  with  small  beer, 
and  says  the  beer  is  not  fit  to  be  removed.  Couwenhoven 
denies  the  same,  and  requests  the  Court  to  be  pleased  to  test 
the  same  after  adjournment  of  the  session  and  then  decide. 
Parties  being  heard,  Jacob  van  Couwenhoven  was  ordered  to 
pay  Plf.  the  residue  according  to  contract  and  obligation ;  And 
the  beer  having  been  tested  after  adjournment  of  the  Court  the 
same  was  pronounced  good.  The  Plf.  was  therefore  ordered  to 
receive  the   same."' 

Would  Professor  Wigmore  call  this  autoptic  profference  ? 

As  in  the  other  Dutch  settlements  the  principal  prose- 
cuting officer  of  the  district  was  the  schout  whose  duties 
combined  those  of  a  sheriff  and  district  attorney;  he 
convened  the  justices'  courts  and  executed  the  orders 
of  the  states-general  and  officials  of  the  company. 
Where  local  coujts  were  established  the  justices  were 
known  as  schepens.  Their  jurisdiction  extended  to  the 
rendition  of  judgment  for  sums  under  one  hundred 
guilders.  In  cases  exceeding  that  amount  the  party 
aggrieved  was  allowed  an  appeal  to  the  director  general 
and  council  of  the  New  Netherlands.  The  schepens 
also  had  authority  to  pronounce  sentence  in  criminal 
cases  subject  to  appeal.' 

In  1050  the  Dutch  India  Company,  being  deeply 
in  debt  and  compelled  to  obtain  aid  from  the  city  of 
Amsterdam,  transferred  to  that  city  a  portion  of  their 
possessions  on  the  Delaware.  This  colony  was  called 
New  Amstel,  special  inducements  were  held  out  to 
emigrants,  and  a  town  government  was  established 
consisting  of  a  schout,  three  burgomasters  and  five  to 
seven  schepens,  a  formidable  body  for  the  government 
of  a  village  of  less  than  five  hundred  inhabitants.  Thence - 


>  Records  of  New  Amsterdam  Court,  Vol.  I,  3 58. 

»  O'Callahan's  History  of  New  Netherlands,  V..1.  I,  220; 
VII  Pennsylvania  Archives  (2d  Series),  521,  528,  534;  Hazard's 
Annals  of  Pennsylvania,  221. 


6       EARLY  COURTS  OF  PENNSYLVANIA. 

forth  the  jurisdiction  on  the  river  was  divided  between 
the  officials  of  the  company  and  those  of  the  city's 
colony.^ 

Laws  and  ordinances  were  sent  from  New  Amsterdam 
to  the  Delaware  and  there  proclaimed  for  the  general 
government  of  that  territory.  With  occasional  modi- 
fications, they  were  the  same  as  prevailed  in  the  older 
settlements  on  the  Hudson,  the  ordinances  of  the  West 
India  Company,  the  civil  law,  the  enactments  of  the 
states-general,  and  the  customs  of  Holland. 

In  the  matter  of  granting  divorces  the  magistrates 
of  the  New  Netherlands  exercised  a  liberal  policy  in 
keeping  with  the  doctrines  of  the  Reformation,  a  policy 
that  was  not  destined  to  survive  the  English  Conquest.- 
Traces  of  this  jurisdiction  are  found  on  the  Delaware. 
Vice  Director  Beekman,  writing  to  the  director  general 
under  date  of  April  28,  1660,  mentions  a  Finnish  couple 
who  lived  together  in  constant  strife:  "The  wife  receives 
daily  a  severe  drubbing,  and  is  often  expelled  from  the 
house  as  a  dog.  This  treatment  she  suffered  a  number 
of  years ;  not  a  word  is  said  in  blame  of  the  wife,  whereas 
he,  on  the  contrary,  is  an  adulterer;  on  all  of  which 
the  priest,  the  neighbors,  the  sheriff  and  the  commis- 
saries appealed  to  me,  at  the  solicitation  of  man  and 
wife  that  a  divorce  might  take  place  and  the  small 
property  and  stock  be  divided  between  them."^ 

He  asks  for  orders  but  the  reply  is  not  given. 

In  16()2,  the  Finnish  priest  Laers,  or  Laurentius, 
Carels,  whose  wife  had  eloped  with  Jacob  Jough,  married 
again  before  he  had  obtained  letters  of  divorce  from 
the  council,  performing  the  ceremony  himself.  He  was 
condemned  by  the  commissaries  to  pay  a  fine  of  two 

1  Hazard's  Annals  of  Pennsylvania,  220;  V  Pennsylvania 
Archives  (2d  Series),  459. 

*  Howard's  Matrimonial  Institutions,  Vol.  II,  376. 
3  VII  Pennsylvania  Archives  (2d  Series),  634. 


EARLY  COURTS  OF  PENNSYLVANIA.        7 

hundred  guilders  and  his  new  marriage  declared  illegal, 
but  was  advised  to  apply  to  the  director  general  for  a 
divorce.' 

At  the  last  period  of  the  Dutch  dominion  (1673-4) 
three  judicial  districts  were  recognized,  one  for  the 
inhabitants  of  the  Whorekill,  between  Cape  Henlopen 
and  "Boomties"  (Bombay)  Hook,  another  for  New 
Amstel,  from  Bombay  Hook  to  Kristina  Kill,  and  a 
third  for  Upland  from  Kristina  Kill  "unto  the  head  of 
the  river."-  Roughly  speaking,  the  first  of  these  dis- 
tricts corresponds  to  the  lower  counties  of  the  state  of 
Delaware,  the  second  to  New  Castle  County,  in  that 
state,  and  the  third  to  so  much  of  the  southeastern 
part  of  Pennsylvania  as  was  then  settled,  extending  to 
the  falls  at  Trenton. 

The  humble  and  widely  scattered  settlers  seldom 
had  time  or  occasion  to  indulge  in  law  suits  involving 
questions  or  amounts  beyond  the  limited  jurisdiction 
of  the  schepens,  but  such  disputes  as  did  arise  were  the 
cause  of  endless  discussion  and  much  heartburning 
between  the  officers  of  the  West  India  Company  and 
those  of  the  city  of  Amsterdam,  whose  complaints  and 
recriminations  distracted  the  governor  at  New  Amster- 
dam. In  justifying  the  action  of  the  council  in  such 
a  contest  Peter  Stuyvesant  writes  to  the  directors 
in  Holland:  "We  might  here  remark  upon  and  continue 
with  the  insults  and  slights,  heaped  on  3^our  Hon^^*^ 
Worships'  servants  in  their  capacity  as  supreme  judges 
of  this  province,  but  will  desist  for  the  present  to  keep 
ourselves  above  party  spirit  and  avoid  further  dis- 
pleasures."   Appeals  heard  and  decided  by  the  governor 

'Hazard's  Annals  of  Pennsylvania,  330,  333;  VII  Pennsyl- 
vania Archives  (2d  Series),  G70,  672,  680. 

^Hazard's  Annals  of  Pennsylvania,  407;  VII  Pennsylvania 
Archives  (2d  Series),  758;  Whorekill  is  a  corruption  of  Hoorn 
Kill,  Sussex  Records  (Turner),  2. 


8       EARLY  COURTS  OF  PENNSYLVANIA. 

and  council  seem  to  have  been  carried  to  the  directors 
in  Holland,  and  occasionally  reversed  to  the  chagrin  of 
Stuyvesant,  who  thus  reproaches  his  employers  in  a 
letter  dated  July  21,  1661:— 

"Your  Noble  Worships  say  in  regard  to  the  third  and  last  point 
concerning  the  appeal  and  the  reversing  of  a  sentence  pronounce  d 
against  one  Jan  Gerritsen  van  Marcken,  that  we  would  have 
done  better  not  to  meddle  with  this  case.  Honorable  Worships! 
It  surpasses  our  conception  to  understand  how  to  avoid  such 
proceedings  and  the  reproaches  following  them,  how  to  satisfy 
your  Honors  and  the  parties  to  the  suit  without  exposing  our- 
selves to  blame  for  refusing  a  hearing  and  justice,  as  long  as  it  is 
your  Honble  Worships'  order,  and  pleasure,  that  appeals  are 
to  be  brought  before  your  Honors'  humble  servants  and  we 
declare  with  good  conscience  that  in  this  and  the  abovementioned 
case  we  have  not  aimed  at  nor  intended  anything  else,  but  what 
we  in  our  humble  opinion  judged  to  be  just,  equitable  and  our 
duty:  God  the  Ominiscient  is  the  witness  for  it:  we  have  no 
knowledge  of  it,  that  the  Sheriflf  van  Sweeringen  was  to  be 
forced  here,  to  ask  pardon  of  God  and  justice  in  addition  to 
what  his  opponent  had  demanded:  we  refer  to  the  sentences 
regarding  this  point."  ' 

Dutch  rule  and  Dutch  laws,  however,  were  not 
destined  to  endure  on  the  Delaware.  On  the  twelfth 
of  March,  166-4,  Charles  II  of  England  granted  to  his 
brother,  the  Duke  of  York  (afterwards  James  II),  the 
territory  comprising  the  New  Netherlands. 

The  charter  to  James  is  neither  as  elaborate  nor  as 
carefully  drawn  as  that  granted  eighteen  years  later 
to  Penn.  The  standing  committee  of  the  privy  council 
for  the  foreign  plantations  had  been  but  recently 
organized  and  the  Crown  lawyers  were  just  beginning 
to  realize  that  vast  problems,  legal  and  social,  were 
connected  with  the  administration  of  the  colonial 
domain.  It  has  been  well  said  that  in  the  colonial 
charter  will  be  found  the  germ  of  American  constitutional 

1  VII  Pennsylvania  Archives  (2d  Series),  06-*. 


EARLY  COURTS  OF  PEXXSYLVAXIA.       9 

law,  whether  of  the  trading  company  or  proprietary 
type,  since  it  contained  beside  the  grant  of  territory 
a  scheme  of  poHtical  organization.^  It  is  a  significant 
fact  that  the  charter  of  James  contains  no  reference 
to  a  legislative  assembly;  the  Duke  is  given  "full  and 
absolute  power  and  authority"  to  "correct,  punish, 
pardon,  govern  and  rule"  the  inhabitants  of  the  terri- 
tories according  to  such  laws,  ordinances  and  directions 
as  he  should  establish,  not  contrary  to  the  laws  of 
England,  reserving  to  the  Crown  the  right  to  hear  and 
determine  appeals  from  judgments  or  sentences  there 
given.- 

With  the  history  of  the  conquest  of  the  New  Nether- 
lands we  are  not  directly  concerned;  suffice  it  to  say 
that  Sir  Robert  Carr  who  was  charged  with  the  reducing 
of  the  Dutch  possessions  on  the  Delaware  arrived  at 
that  river  in  the  latter  part  of  the  year  1G64,  and  with- 
out much  bloodshed  obtained  the  surrender  of  the 
colony.  Carr  established  the  seat  of  government  at 
New  Amstel,  the  name  of  which  was  now  changed  to 
New  Castle,  and  under  the  terms  of  his  agreement  with 
the  inhabitants,  continued  all  the  magistrates  in  their 
offices  upon  their  taking  the  oath  of  allegiance.^  The 
wise  policy  of  enlisting  the  local  authorities  in  support 
of  the  new  government  was  continued,  and  Dutch  and 
Swedish  magistrates  administered  justice  to  their 
neighbors  until  long  after  the  arrival  of  William  Penn. 

The  period  of  the  Duke  of  York's  rule  is  of  more 
importance  in  our  judicial  history  than  would  at  first 
be  supposed.  It  was  a  formative  period,  and  the  law 
and  practice  as  then  developed  had  a  marked  influence 
upon  the  early  legislation  of  the  province  of  Pennsylvania. 

>  Constitutional  law  by  S.  E.  Baldwin  in  Two  Centuries 
Growth  of  American  Law,  11. 

2  V  Pennsylvania  Archives  (2d  Series),  494. 
»  V  Pennsylvania  Archives  (2d  Series),  544. 


10      EARLY  COURTS  OF  PENNSYLVANIA. 

The  establishment  of  EngHsh  jurisprudence  in  the 
colonies  on  the  Delaware  was  not  the  work  of  a  day, 
but  a  gradual  process,  involving  compromises  with 
the  established  customs  and  practices  of  the  inhabitants, 
the  gradual  transformation  of  the  Dutch  schouts  and 
schepens  into  their  English  equivalents,  the  education 
of  the  magistracy  in  the  rudiments  of  English  court 
practice  and  the  actual  modification  of  many  of  the 
rules  of  the  common  law,  both  as  to  property  and 
practice,  to  meet  the  necessities  of  the  primitive  social 
conditions  in  the  New  World. 

The  legal  conceptions  of  the  new  rulers  found  ex- 
pression in  a  brief  code  promulgated  at  Hempstead, 
Long  Island,  in  1664,  which,  quaint  and  unsystematic 
as  it  may  seem  to  us  now,  contained  several  notable 
departures  from  the  common  law  well  worth  careful 
study  by  those  interested  in  legal  history. 

The  principle  seems  to  have  been  generally  accepted 
in  the  American  colonies  that  the  elements  of  public 
and  private  law  should  be  stated  in  a  concise  and 
permanent  form.  Whether  originating  with  the  people, 
as  in  the  case  of  the  "Body  of  Liberties"  in  Massachusetts, 
or  with  the  proprietors,  as  in  the  case  of  the  "Funda- 
mental Constitutions"  of  the  Carolinas,  the  tendency 
of  early  colonial  law  was  toward  codification.^  And 
what  could  be  more  natural  than  that  both  adventurers 
and  proprietors  should  dream  of  creating  little  Utopias 
by  force  of  the  statute  book?  New  conditions,  too, 
required  new  measures,  the  laymen  who  administered 
justice  required  brief  and  simple  handbooks  for  their 
guidance,  and  the  mixed  population  a  homogeneous 
system  in  the  place  of  their  various  ancestral  customs. 
Such  a  code  was  the  Duke  of  York's  Laws  which  is 
stated  to  have  been  "Collected  out  of  the  Severall  Laws 


'  Reinch's  Colonial  Common  Law,  reprinted  in  Select  Essays 
in  An^lo-American  Legal  History,  Vol.   1,  .367. 


EARLY  COURTS  OF  PENNSYLVANIA.      11 

now  in  force  in  his  Majesties  American  Colonyes  and 
Plantations."  Prior  to  the  conquest  of  the  New  Nether- 
lands, Colonel  Nicolls,  the  newly  appointed  governor, 
and  Sir  Robert  Carr  had  been  appointed  members  of  a 
commission  for  the  visitation  of  the  New  England 
colonies,  a  part  of  whose  duties  it  was  with  diligence  and 
care  "to  peruse  the  collection  of  the  lawes  published 
in  those  colonies  during  the  late  usurping  Government, 
or  at  any  tyme  before  or  since;  to  the  end  that  upon 
examination  thereof  you  may  disceme  both  the  indecent 
expressions  and  material  and  important  points  and 
determinations  in  them,  which  are  contrary  to  our  dig- 
nity and  to  the  lawes  and  customes  of  this  realme  and 
to  the  justice  thereof;  all  which  they  have  obliged 
themselves  to  cancele  and  repeale;  and  if  the  same  bee 
not  already  done,  you  are  in  the  first  place  to  cause 
it  to  be  done."^ 

The  commissioners  were  also  empowered  to  hear  all 
complaints  and  appeals  in  matters  military,  criminal 
and  civil,  but  it  was  left  to  their  discretion  whether 
they  would  first  visit  New  England  or  reduce  the  Dutch 
to  submission.  Having  carried  out  the  latter  project 
it  became  necessary  at  once  to  organize  the  captured 
territory.  The  greater  part  of  Long  Island  was  already 
occupied  by  settlers  from  New  England  and,  having 
obtained  copies  of  the  laws  of  Massachusetts  and  New 
Haven,    Nicolls'   with   the   assistance   of  the   secretary 

1  V  Pennsylvania  Archives  (2d  Series),  501,  507. 

2  Broadhead's  History  of  New  York,  Vol.  II,  66.  Governor 
Nicolls  writes  to  Clarendon  April  7,  1666:  "My  Lord,  I  have 
remitted  for  confirmation  to  his  Royal  Highness  the  present 
Lawes  of  this  Colony  collected  out  of  the  Lawes  of  the  other 
Colonyes,  onely  with  such  alterations  as  may  revive  the  memory 
of  old  England  amongst  us,  ffor  Democracy  hath  taken  so  deepe 
a  roote  in  these  parts,  that  ye  very  name  of  a  Justice  of  the 
Peace  is  an  abomination."  New  York  Historical  Society  Collec- 
tions, 1869,  p.  75. 


12      EARLY  COURTS  OP  PENNSYLVANIA. 

and  some  of  the  magistrates  prepared  a  code  which, 
as  a  comparison  will  show,  drew  much  of  its  material 
from  these  sources  with,  in  the  governor's  words,  "a 
relaxation  of  their  severity  in  matters  of  conscience 
and  religion."  The  cruel  laws  against  heretics  and 
against  "a  pernicious  sect  commonly  called  Quakers"* 
were  omitted,  as  well  as  many  other  provisions  relating 
to  the  Puritan  discipline.  The  "capital  lawes"  were 
transcribed  from  the  Massachusetts  code,  which  was 
avowedly  based  on  the  Old  Testament,  but  the  offense 
of  witchcraft  was  omitted  and  while  the  clause  making 
it  a  capital  ofTense  for  children  above  sixteen  years 
old  to  curse  or  smite  their  parents  was  retained,  the 
succeeding  clause,  enabling  a  man  having  a  stubborn 
or  rebellious  son  to  bring  him  to  the  magistrates  to  be 
put  to  death  in  accordance  with  Deuteronomy,  xxi,  18, 
was  rejected. 

As  in  its  prototypes,  the  code  is  divided  into  titles 
arranged  in  alphabetical  order  but  the  classification  is 
neither  logical  nor  consistent,  a  failing  noticeable  in 
more  modern  and  more  pretentious  legal  productions. 
Much,  however,  that  was  adopted  was  both  valuable 
and  practical  and,  with  additions  from  English  and 
Dutch  sources,  was  moulded  into  a  form  that  perhaps 
met  best  the  needs  of  civil  administration  in  a  newly 
organized  proprietary  province.     Indeed  we  may  recog- 

I  Laws  of  Massachusetts  Colony  (1672),  61.  The  Act  of  1661 
provided  that  "Vagabond  Quakers"  should  "be  stripped  naked 
from  the  middle  upwards,  and  tyed  to  a  Carts  tail,  and  whipped 
through  the  Town,  and  from  thence  immediately  conveyed 
to  the  constable  of  the  next  Town  towards  the  borders  of  our 
jurisdiction,  as  their  warrant  shall  direct,  and  so  from  constable 
to  constable  till  they  be  conveyed  through  any  the  outward- 
most  Towns  of  our  jurisdiction."  If  the  Quaker  returned  he 
was  to  be  branded  and  whipped  as  before  and  if  he  returned 
again  suffer  death.  The  Act  of  1662  reduced  the  whippings 
to  three  towns. 


EARLY  COURTS  OF  PENNSYLVANIA.      13 

nize  in  this  as  well  as  other  provincial  codes  a  kindred 
spirit,  which  without  attempting  to  exploit  many  theo- 
retical views  on  jurisprudence,  drew  upon  a  common 
source  for  so  much  of  English  law  and  custom  as  could 
reasonably  be  applied  to  the  social  and  economic  condi- 
tions of  frontier  life. 

It  is  most  difficult  to  determine  how  far  the  common 
law  was  viewed  as  a  subsidiary  system  when  not  replaced 
by  colonial  statutes.  The  accepted  theory  that  the 
colonists  brought  with  them  and  adopted  so  much  of 
the  common  law  as  was  applicable  to  their  condition^ 
is  not  wholly  borne  out  by  the  facts.  As  the  colonies 
increased  in  wealth  and  population,  as  their  commercial 
relations  with  the  mother  country  became  more  com- 
plex, the  doctrines  of  the  common  law  were  necessarily 
drawn  upon  to  fill  up  the  gaps  in  the  early  legislation, 
and,  as  friction  with  the  home  government  increased, 
the  popular  party  appealed  more  and  more  to  the 
common  law,  particularly  to  Magna  Charta,  as  the 
muniment  of  political  liberty  and  birthright  of  English- 
men, an  appeal  which  writers  such  as  Blackstone 
sought  to  evade  by  applying  to  America  the  status  of 
conquered  territory. - 

Even  more  obscure  is  the  question  of  the  applicability 
of  English  statutes,  but  the  principle  was  generally 
accepted  that  acts  of  parliament  passed  after  the  settle- 
ment of  a  colony  were  not  in  force  there  unless  the 
words   of  the   act   expressly   included   the   territory    so 


*  Story,  J.,  in  Van  Ness  v.  Packard,  2  Peter's  Reports  (U.  S.), 
144  (1829);  Commonwealth  v.  Knowlton,  2  Mas.sachusetts 
Reports,  530  (1807);  Bogardus  v.  Trinity  Church,  4  Paige's 
Reports  (N.  Y.),  197  (1833). 

^  Blackstone's  Commentaries  Introduction,  page  107,  and 
Notes  of  American  Editors,  particularly  Hammond;  Johnson 
V.  Mcintosh,  8  Wheaton's  Reports  (U.  S.),  582  (1827). 


14      EARLY  COURTS  OF  PENNSYLVANIA. 

occupied/  although  in  some  instances  local  usage  would 
seem  to  have  given  the  force  of  law  to  a  statute  not  so 
extended.  The  subject  is  difficult  and  intricate.-  But 
at  the  early  period  now  under  discussion  the  tendency 
was  to  regard  the  elementary  codes  as  approximately 
complete  statements  of  the  law.  For  matters  not  cov- 
ered New  England  referred  to  the  "Word  of  God"  as 
contained  in  the  Scriptures,  while  in  the  south  the 
inclination  was  to  claim  a  share  in  the  laws  of  England, 
but  in  either  case  the  application  of  these  vague  prin- 
ciples left  in  the  local  magistrates  a  very  wide  discretion 
which  in  the  absence  of  professional  criticism  was  checked 
and  restrained  only  by  legislative  action  or  the  influence 
of  the  governor  and  council.^  In  the  Duke  of  York's 
Laws  the  difficulty  is  met  by  the  following  clause : — 

"In  regard  it  is  almost  impossible  to  provide  sufficient  Lawes 
in  all  Cases,  or  proper  Punishments  for  all  Crimes.  The  Court 
of  Sessions  shall  not  take  further  Cognizance  of  any  Case  or 
Crimes,  whereof  there  is  not  provition  made  in  some  Lawes  but 
to  remit  the  Case  or  Crime,  with  the  due  Examination  and  proof 
to  the  Next  Court  of  Assizes  where  matters  of  Equity  shall  be 
decided,  or  Punishment  awarded  according  to  the  discretion 
of  the  Bench  and  not  contrary  to  the  known  Laws  of  England."* 

An  analysis  of  the  substantive  provisions  of  this  code, 
however  interesting,  is  outside  of  the  scope  of  this  dis- 


1  Anonymous,  2  Peere  Williams's  Reports,  74  (1722);  Blankard 
V.  Galdy,  2  Salkeld's  Reports,  411  (1694);  Anonymous,  1  Dallas's 
Reports,  1  (1754). 

2  Chalmer's  Opinions,  208;  Report  of  the  Judges,  3  Binney's 
Reports,  595  (1808);  Pepper  &  Lewis's  Digest  of  Pennsylvania 
Decisions,  Vol.  XX,  col.  35347;  Commonwealth  v.  Burrell,  7 
Pennsylvania  Reports,  34  (1847). 

3  Sioussat's  English  Statutes,  reprinted  in  Select  Essays  in 
Anglo-American  History,  Vol.   I,  416. 

*  Charter  and  Laws  of  Pennsylvania,  35.  Upon  such  com- 
plaints of  inconveniences  and  omissions  the  laws  were  several 
times  amended.     Charter  and  Laws  of  Pennsylvania,  58,  60.  68. 


EARLY  COURTS  OF  PENNSYLVANIA.      15 

cussion.  It  is  sufficient  to  note  that  New  York,  in 
passing  from  the  status  of  a  proprietary  to  that  of  a 
royal  province,  came  more  directly  under  home  influ- 
ences and,  as  in  the  case  of  Virginia,  the  more  radical 
and  experimental  features  of  the  early  laws  disappeared 
in  the  face  of  the  constantly  increasing  influence  of  the 
common  law,  or  what  the  colonial  administrator  under- 
stood as  common  law. 

As  to  remedial  law  it  was,  in  the  first  place,  provided 
that  all  actions  of  debt  or  trespass  under  the  value  of 
five  pounds  between  neighbors  should  be  put  to  the 
arbitration  of  two  indifferent  persons  of  the  neighbor- 
hood to  be  nominated  by  the  constable,  or  if  either  of 
the  parties  refused  their  arbitration,  the  justices  of  the 
peace  should  choose  three  other  persons  who  were  to 
meet  at  the  cost  of  him  who  dissented  from  the  first 
method,  and  their  award  should  be  conclusive.  ^  The  prac- 
tice of  referring  complicated  cases  to  arbitration  prevailed 
in  the  New  Netherlands  and  this  provision  has  been 
regarded  as  a  survival  of  the  Dutch  custom.-  Volun- 
tary submissions  were  well  known  at  the  common  law, 
but  the  principle  of  compulsory  reference  was  then 
and  still  is  to  a  certain  extent,  looked  upon  askance  as 
an  attempt  to  take  away  the  palladium  of  liberty — the 
right  to  a  jury  trial. ^  Arbitration,  as  we  shall  see, 
occupied  a  prominent  place  in  Penn's  system  of  justice, 
was  by  far  the  most  popular  method  of  determining 
minor  civil  cases  during  the  early  period  in   Pennsyl- 


»  Charter  and  Laws  of  Pennsylvania,  8;    .see  also  page  5L 
2  Records  of  Court  of  New  Amsterdam,  Vol.  I,  226,  230,  237, 
268,  299. 

'  Steven's  Essay  on  Arbitration,  105.  The  principle  of  com- 
pulsory arbitration  in  partnership  disputes  was  recognized  in 
France  by  an  edict  of  Francis  II  (1560)  and  an  ordinance  of 
Louis  XIV  (1673),  incorporated  in  the  Code  Napoleon,  L.  1,  tit. 
3,  2. 


16      EARLY  COURTS  OF  PENNSYLVANIA. 

vania,  and,  though  less  used  now,  is  still  a  part  of  the 
law.  In  1G77,  the  court  at  New  Castle  referred  a  dis- 
pute concerning  the  estate  of  a  decedent  to  two  arbi- 
trators who  were  to  examine  the  accounts  and  if  possible 
decide  the  difference,  otherwise  to  choose  an  umpire 
and  report  at  the  next  court  day.^  In  1G78  Hendrick 
Vanden  Burgh  petitioned  the  court  complaining  that 
he  had  bought  a  house  and  lot  from  one  Vidette  who 
had  purchased  from  William  Tom,  deceased;  that  the 
lot  was  six  feet  less  in  breadth  than  the  deed  called  for 
and  praying  that  this  be  added  from  Tom's  adjoining 
lot  which  was  about  to  be  sold: — 

"The  court  answer  that  whereas  this  business  in  the  Lyfetyme 
of  Jan  Vidette  &  Mr  Tom  was  in  question,  and  then  decyded 
by  Mr  Moll,  Mr  Hans  Blocq  &  Capt"  Cregier  as  umpier  and  the 
PeticonT  now  haueing  in  possession  soe  mutch  ground  as  then 
the  arbitrators  allowed,  must  therefore  Rest  himself  Contented 


7  th 


ye  same. 


The  courts  were  organized  on  a  basis  not  dissimilar 
from  that  which  already  prevailed  under  the  Dutch 
rule,  with  modifications  suggested  by  the  practice  in  the 
older  English  colonies.  The  principal  court  was  the 
general  court  of  assizes,  held  once  a  year  in  the  autumn, 
presided  over  by  the  governor,  and  attended  by  the 
council,  the  mayor  and  aldermen  of  New  York,  and  the 
justices  of  the  various  courts  of  sessions.^  No  express 
provision  for  its  creation  is  to  be  found  in  the  laws 
although  it  is  there  incidentally  mentioned,  and,  while 
the  subject  is  obscure,  the  court  was  in  fact  the  successor 
of  that   held  by  the  director  and  council  of  the  New 


'  Records  of  the  Court  of  New  Castle,  94. 

2  Records  of  the  Court  of  New  Castle,  292. 

^Charter  and  Laws  of  Pennsylvania,  IL  The  Court  of 
Assizes  was  aboli-shed  in  1684  by  Act  of  Assembly.  Scott's 
History  of  Courts  of  New  York,  104. 


EARLY  COURTS  OF  PEXXSYLVANIA.      17 


Netherlands.  The  limits  of  its  jurisdiction  were  unde- 
fined, and  it  seems  to  have  combined  both  legislative 
and  judicial  functions ;  indeed  it  was  the  closest  approxi- 
mation to  a  legislature  that  New  York  was  destined  to 
enjoy  for  some  time.  The  court  heard  appeals  from  the 
sessions  and  complaints  against  local  officials,  tried  the 
more  important  civil  cases  and  all  capital  cases,  except 
where  a  special  commission  of  oyer  and  terminer  was 
issued  to  the  justices  of  a  distant  community  in  order 
to  obtain  a  more  speedy  trial. 

The  procedure  on  appeal  was  taken  almost  literally 
from  the  laws  of  Massachusetts  relating  to  appeals  to 
the  court  of  assistants.^  The  appellant  was  required 
to  give  security  for  prosecuting  an  appeal  and  payment 
of  damages.  The  grounds  and  reasons  for  appeal  were 
to  be  filed  with  the  clerk  of  the  court.  No  justice  that 
had  sat  or  voted  in  the  inferior  court  was  permitted  to 
vote  in  the  court  appealed  to.  Where  the  law  and  facts 
were  found  to  agree  with  the  former  judgment  it  was 
not  to  be  revoked,  but  the  damages  could  be  abated  or 
increased  as  should  be  judged  right. 

Courts  of  sessions  were  established  in  districts  roughly 
corresponding  to  counties  (in  the  neighborhood  of  New 
York  called  Ridings  in  imitation  of  the  division  of  the 
English  County  of  Yorkshire).  These  courts  were  held 
three  times  in  the  year,  and  were  attended  by  the  jus- 
tices of  the  peace.  The  governor,  if  present,  presided, 
or  in  his  absence  a  member  of  the  council  or  the  senior 
justice.  All  actions  involving  from  five  to  twenty 
pounds  were  triable  at  this  court,  from  which  there 
was  no  appeal  "unless  the  debt  appear  to  be  above  that 
summe  of  twenty  pounds  or  where  there  is  a  dubiousness 
in  the  expression  of  the  law."^     In  addition  the  court 

'  Laws  of  Massachusetts  Colony  (1672),  3;  compare  Charter 
and   Laws  of  Pennsylvania,  7. 

2  Charter  and  Laws  of  Pennsylvania,  4. 


18      EARLY  COURTS  OF  PENNSYLVANIA. 

was  charged  with  the  granting  of  letters  of  adminis- 
tration, the  preservation  of  the  peace,  the  trial  of  petty 
offenders,  and  the  usual  duties  associated  with  the 
quarter  sessions  including  the  granting  of  liquor  licenses, 
a  duty  still  imposed  on  our  quarter  sessions  to  the  dis- 
comfort of  the  judges.  In  this  connection  the  law 
provided: — 

"Every  person  Licenced  to  keep  an  Ordinary  shall  always  be 
provided  of  strong  and  wholesome  Beer,  of  four  bushels  of  malt, 
at  the  least  to  a  Hoggshead  which  he  shall  not  Sell  at  above 
two  pence  the  quart  under  the  penalty  of  twenty  shillings,  for 
the  first  Offence,  forty  shillings  for  the  Second,  and  loss  of  his 
Licence.  It  is  permitted  to  any  to  sell  Beer  out  of  the  Doores  at 
a  peny  the  Ale  quart  or  under. 

"No  Licenced  Person  shall  suffer  any  to  Drink  excessively  or 
at  unseasonable  hours  after  Nine  of  the  Clock  at  night  in  or 
about  any  their  houses  upon  penalty  of  two  shillings  six  pence 
for  every  Offence  if  Complaint  and  proofe  be  made  thereof. 

"No  Licenced  Person  shall  unreasonably  exact  upon  his  Guest 
for  any  sort  of  entertainment,  and  no  man  shall  be  compelled 
to  pay  above  eight  pence  a  Meale,  with  small  beer  only,  unless 
the  Guest  shall  make  other  agreement  with  the  person  so 
lycenced. 

"No  Licence  shall  be  granted  by  any  two  Justices  in  Sessions 
for  above  the  terme  of  one  year,  but  every  person  .so  Licenced 
before  the  expiration  of  the  .said  Terme  shall  and  are  hereby 
enjoyned  to  repair  to  the  Sessions  of  that  Jurisdiction  for  renew- 
ing their  several  Licences  for  which  they  shall  pay  to  the  Clark 
of  the  Sessions  two  Shillings  Six  pence,  or  else  they  shall  forfeit 
five  pounds  as  unlicenced  persons."^ 

Pure  food  agitation  and  rate  regulation  are  thus  fore- 
shadowed, but  not  prohibition. 

In  all  actions  the  plaintiff  was  required  to  file  his 
declaration  eight  days  before  hearing."     The  defendant 

^  The  law  was  soon  amended  "that  Inn  keepers  or  Ordinary 
keepers  shall  not  bee  obliged  to  put  any  perticuler  quantity 
of  Mault  into  their  Beere."  Charter  and  Laws  of  Pennsylvania, 
64.  For  a  petition  for  a  license  to  keep  an  ordinary  see  Records 
of  Court  of  New  Castle,  312. 

2  Charter  and   Laws  of  Pennsylvania,  4. 


EARLY  COURTS  OF  PENNSYLVANIA.      19 

was  permitted  to  take  a  copy  thereof  and  file  an  answer. 
If  judgment  was  entered  for  plaintiff  it  was  endorsed 
on  the  declaration,  if  for  the  defendant  on  the  answer. 
As  in  Massachusetts,  no  proceedings  are  to  be  reversed 
because  of  errors  or  mistakes  "if  the  person  and  cause 
be  rightly  understood  and  intended  by  the  court."* 
Imprisonment  in  civil  cases  was  restricted.  No  man 
was  to  be  kept  in  prison  for  a  debt  or  fine  longer  than 
the  second  day  of  the  sessions  after  the  arrest  unless  it 
was  made  to  appear  that  he  had  some  estate  which  he 
would  not  produce;  if  the  debtor  had  no  estate  he  could 
be  required  to  satisfy  the  debt  by  service. 

In  deference  to  the  wishes  of  the  New  Englanders 
settled  on  Long  Island  provision  was  made  for  a  town 
court  consisting  of  the  constable  and  overseers.  The 
number  of  the  latter  was  first  fixed  at  eight  but  w^as 
subsequently  reduced  to  four.^  Their  duties  were  chiefly 
administrative,  but,  in  cases  where  the  parties  refused 
arbitration,  the  town  court  was  to  decide  the  case  if 
less  than  five  pounds  was  involved.^  The  town  system, 
however,  was  not  destined  to  thrive  in  the  middle 
colonies,  and  penetrated  to  the  Delaware  only  in  an 
attenuated  form. 

Last  in  the  official  scale  was  the  constable,  then,  as 
now,  the  local  peace  officer.  His  badge  of  office  was  a 
staff  six  feet  long  with  the  king's  arms  thereon,  which 
was  to  be  provided  at  the  cost  of  the  town,*  but  on  the 
Delaware  came  out  of  the  slender  purse  of  the  local 
Dogberry.^  Among  his  other  onerous  duties  he  was 
required  to  whip  or  punish  any  one  so  ordered  by  author- 
ity, "unless  they  can  get  another  person  to  do  it." 

'  Charter  and  Laws  of  Pennsylvania,  IL 
*  Charter  and  Laws  of  Pennsylvania,  44,  69. 
'  Charter  and  Laws  of  Pennsylvania,  GO. 
■•  Charter  and  Laws  of  Pennsylvania,  22. 

°  "The  wch  they  will  "bee  at  ye  charge  of  themselves."  VII 
Pennsvlvania  Archives  (2d  Series),  737. 


20      EARLY  COURTS  OF  PENNSYLVANIA. 

A  singular  feature  of  the  code  was  the  section  relating 
to  jurors.     It  was  provided  that — 

"No  jury  shall  exceed  the  number  of  seaven  nor  be  under 
six  unless  in  Special  Causes  upon  Life  and  Death,  the  Justices 
shall  thinke  fitt  to  Appoint  twelve." 

"A  verdict  shall  be  so  esteemed,  when  the  major  part  of  the 
Jury  is  agreed,  and  the  Minor  shall  be  concluded  by  the  Major 
without  allowance  of  any  protest  by  any  of  them  to  the  Contrary; 
Except  in  case  of  Life  and  Death  where  the  whole  Jury  is  to  be 
unanimos  in  their  Virdict."' 

The  source  of  this  enactment,  although  not  disclosed, 
will  probably  be  found  in  a  modified  form  in  the  Con- 
necticut code  of  1650^  which  left  it  to  the  magistrates— 

"To  impannell  a  jury  of  sixe  or  twelve,  as  they  shall  judge 
the  nature  of  the  case  shall  require — and  if  foure  of  sixe,  or 
eight  of  twelve  agree,  the  verdict  shall  be  deemed  to  all  intents 
and  purposes,  sufficient  and  full." 

In  confirmation  of  this  view  the  similar  provision  of 
16G.5  in  regard  to  the  town  courts  may  be  recalled, 
where — 

"The  constable  and  overseers  are  to  give  their  judgment 
by  the  Major  vote,  where  six  with  the  constable,  or  seaven  in 
his  absence,  are  competent  and  equivolent  to  a  jury,  and  the 
constable  upon  equall  Division,  is  to  have  a  casting  voyce."* 

In  1GG6,  it  was  directed  that  in  jury  trials  at  the 
court  of  assizes  the  number  of  jurors  should  be  twelve, 
but  that  at  the  courts  of  sessions  the  number  set  forth 
in  the  law  should  be  sufficient.* 

This  remarkable  deviation  from  the  English  jury 
system  was  not  destined  to  survive.     In  the  records  of 

^  Charter  and  Laws  of  Pennsylvania,  .33. 

=  The  Connecticut  Laws  of  1650  (Hartford,  1833),  60. 

^  Charter  and  Laws  of  Pennsylvania,  60. 

*  Charter  and  Laws  of  Pennsylvania,  "69. 


EARLY  COURTS  OF  PENNSYLVANIA.      21 

the  court  at  Upland,  to  which  reference  will  be  made 
hereafter,  there  is  a  case  concerning  title  to  real  estate 
which  was  tried  in  1681  before  a  jury  of  seven, ^  but  in 
other  cases  in  the  same  court  juries  of  twelve  were 
drawn,  as  was  the  practice  also  of  the  court  at  New 
Castle.  2 

Penn  in  his  laws  agreed  upon  in  England  provided 
that  all  trials  should  be  by  twelve  men,  and  this  was 
made  a  fundamental  law  of  the  province.^  At  the  first 
court  held  at  Lewes  for  the  county  of  Sussex  by  com- 
mission of  William  Penn  the  legality  of  a  prior  verdict 
by  a  jury  of  seven  was  questioned.  The  suit  was  by 
Hermanns  Wiltbank  against  Cornelius  Johnson  and  is 
stated  to  be  "by  way  of  scarifacous"*  to  show  cause 
why  the  defendant  should  not  give  the  plaintiff  posses- 
sion of  certain  land. 

"According  to  An  order  of  Court  &  verdict  of  a  jurey  of 
Seaven  men  obtaind  in  this  Court  the  8th  day  of  the  1  Mo. 
1681.  The  said  CorneUs  Johnson  showeth  cause  by  his  plea 
delivered  into  the  Court  in  writing  that  he  had  obtained  in  this 
court  a  verdict  of  a  Jurey  of  twelve  men  for  the  said  Land  and 
premisses  According  to  the  Laws  of  England;  and  that  the 
verdict  of  seaven  men  was  and  is  Contrary  to  the  knownen 
Laws  of  England."* 

It  was  further  alleged  that  Wiltbank  had  appealed 
from  the  former  verdict  against  him  and  had  failed  to 
prosecute  his  appeal.  The  court  with  the  consent  of 
both  parties  referred  the  matter  to  the  proprietor.  At 
a  subsequent  court  the  plaintiff  again  brought  up  the 

•  Records  of  the  Court  at  Upland,  190;   see  pages  107  and  181. 
2  Records  of  the  Court  of  New  Castle,  12,  49,  53,  81,  133,  1G8, 

174,  212,  217,  358,  436,  455. 

^  Charter  and  Laws  of  Pennsylvania,  100,  117,  154. 

*  Elsewhere  in  the  record  "searifacous"  (scire  facias,  mistaken 
for  habere  facias  possessionem) . 

'  Sussex  Records  (Turner),  86,  91. 


22      EARLY  COURTS  OF  PENNSYLVANIA. 

matter,  stating  that  the  governor  had  confirmed  his 
right  to  the  land  but  had  recommended  that  it  should 
be  left  to  the  peacemakers  to  determine  whether  any- 
thing was  due  the  defendant  for  his  improvements. 
Failing  to  prove  his  declaration  he  was  nonsuited  but 
afterwards  on  the  advice  of  the  court  the  whole  dispute 
was  referred  to  arbitration.^ 

The  Duke  of  York's  Laws  were  not  put  into  execution 
in  the  territories  on  the  Delaware  immediately  upon  their 
adoption.  As  already  stated,  the  Dutch  and  Swedish 
magistrates  were  retained  in  office,  but  it  was  wisely 
resolved  to  carry  the  necessary  changes  into  effect  grad- 
ually. In  1668  Governor  Lovelace  issued  directions  to 
Deputy  Governor  John  Carre  to  associate  the  schout 
and  certain  magistrates  with  himself  as  a  council,  and 
that — 

"The  Lawes  of  the  Governmt  Establisht  by  his  Royall  Highness 
be  shewed  &  frequently  Communicated  to  the  said  Councellors  & 
all  othrs.  To  the  end  that  being  therwth  acquainted  the  practice 
of  them  may  also  in  convenient  tyme  be  established  wch  con- 
duceth  to  the  Public  Welfare  &  Common  Justice. "^ 

Under  this  plan  the  government  was  steadily  brought 
into  harmony  with  English  ideas,  the  temporary  check 
received  in  1673,  when  the  Dutch  for  a  few  brief  months 
repossessed  themselves  of  the  New  Netherlands,  scarcely 
interrupting  this  process.  At  a  council  held  at  New 
York,  May  17,  1672,  it  was  ordered: — 

"That  for  ye  better  Governm*  of  ye  Towne  of  New  Castle 
for  the  future,  the  said  Towne  shall  be  erected  into  a  Corporacon 
by  the  name  of  a  Balywick,  That  is  to  say,  it  shall  be  Governed 
by  a  Bailey  &  six  Assistants,  to  bee  at  first  nominated  by  the 
Governor  and  at  ye  expiracon  of  a  yeare  foure  of  the  six  to  go 

1  Sussex  Records  (Turner)   102.     In  the  earlier  records  there 
'    are  cases  tried  before  juries  of  both  seven  and  twelve  men. 

2  VII  Pennsylvania  Archives  (2d  Series),  722. 


EARLY  COURTS  OF  PENNSYLVANIA.      23 

out  &  foure  others  to  be  chosen  in  their  places,  the  Bailey  to 
continue  for  a  yeare,  &  then  two  to  be  named  to  succeed,  out 
of  whom  ye  Governor  will  elect  one;  Hee  is  to  preside  in  all 
ye  corts  of  the  Towne  «fe  have  a  double  vote.  A  constable  is 
likewise  annually  to  be  chosen  by  ye  Bench. 

"The  Towne  Court  shall  have  power  to  try  all  causes  of  debt 
or  damage  to  the  value  of  ten  pounds  without  appeal. 

"That  ye  EngUsh  Lawes  according  to  the  de^^ire  of  the  in- 
habitants, bee  establisht  both  in  ye  Towne  &  all  plantations  upon 
Delaware  River. 

"That  the  office  of  Sellout  be  converted  into  a  Sheriffalty  & 
ye  High  Sheriffs  power  extend  both  in  the  corporacon  &  river  & 
that  he  be  annually  chosen  by  two  being  presented  to  the 
Govern^,  of  whom  he  will  nominate  &  confirm  one."' 

Finally,   on   September   26,    1G7G,   an   ordinance  was 

passed  by  Governor  Andros  and  the  council  formally 

ntroducing  the  Duke  of  York's  Laws  and  establishing 

courts  on  the  Delaware,  the  material  portion  of  which 

is  as  follows: — 

"Whereas  upon  a  peticon  of  the  Magistrates  and  officers  of 
New  Castle  and  Delaware  River,  Goveno^  Lovelace  did  resolve  & 
in  part  settle  the  Establish  Lawes  of  this  Government  and  appoint 
some  magistrates  under  an  Enghsh  Denominacon  accordingly. 
In  the  which  their  having  been  an  obstruction  for  reason  of  the 
late  warres  &  Change  of  Government;  And  findeing  now  an 
absolute  necessity  for  ye  well  being  of  the  Inhabitants,  to  make 
a  speedy  settlement,  to  be  a  generall  knowne  rule  unto  them 
for  the  future,  Vpon  mature  deliberation  and  advise  of  my 
Councell,  I  have  resolved,  and  by  vertue  of  the  Authority 
derived  unto  mee,  doe  hereby  in  his  Mamies  Name  Order  as 
foUoweth. 

"1.  That  the  booke  of  Lawes  Establisht  by  his  Royal  High- 
nesse  &  practiced  in  New  Yorke,  Long  Island,  and  Dependencies 
bee  Hkewise  in  force,  and  practiced  in  this  River  and  Precincts, 
Except    the    Constables    Courts,    Country   Rates  &  some-other 

1  VII  Pennsylvania  Archives  (2d  Series)  748.  The  commis- 
sion of  Peter  Alricks  as  "BayUff"  of  the  corporation  of  New 
Castle  dated  August  24,  1672,  will  be  found  in  V  Pennsylvania 
Archives  (2d  Series),  019. 


24      EARLY  COURTS  OF  PENNSYLVANIA. 

things  peculiar  to  Long  Island,  and  the  Militia  as  now  ordered 
to  remaine  in  ye  King,  but  that  a  constable  in  each  place  bee 
yearely  chosen  for  the  Preservacon  of  his  Mat'^s  Peace  with 
all  other  Power  as  directed  by  ye  law. 

"2.  That  there  bee  three  Courts  held  in  ye  several  (parts  of 
the  river)  &  bay  as  formerly.  To  witt  one  in  the  Townes  (New 
Castle  one  above  at)  Uplands  another  below  at  the  Whorekil. 

"3.  That  the  said  Courts  consist  of  Justices  of  the  Peace 
whereof  three  to  make  a  Coram,  &  to  have  the  Power  of  a  Court 
of  Sessions  &  decide  all  matters  under  twenty  pounds  without 
Appeale,  in  which  Court  the  olde.st  Justice  to  preside,  unless 
otherwise  agreed  amongst  themselves  above  twenty  pounds  & 
for  crime  Extending  to  life  Limbo  or  Banishment,  to  admit 
appeal  to  the  Court  of  Assizes. 

"4.  That  all  small  matters  under  the  value  of  five  pounds  may 
be  determined  by  the  Court  without  a  jury  unless  desired  by  the 
Partyes  as  also  matters  of  Equity. 

"5.  That  the  Court  for  New  Castle  bee  held  once  a  month,  to 
begin  the  first  Tuesday  in  each  Month  And  the  Couit  for  Uplands 
&  the  Whorekill,  Quarterly  &  to  begin  the  Second  Tuesday  of 
the  Month. 

"6.  That  all  necessary  By  lawes  or  orders  (not  repugnant 
to  the  Lawes  of  the  Government)  made  by  the  said  Courts, 
bee  of  force  &  binding,  for  the  space  of  one  whole  yeare,  in  the 
severall  places  where  made  They  giveing  an  Account  thereof 
to  the  Governo'"  by  the  first  Convenience,  And  that  noe  fines 
be  made  or  imposed  but  by  order  of  Court. 

"7.  That  the  severall  Courts  have  power  to  regulate  the  Court 
and  Offic''^  Fees,  not  to  exceed  the  Rates  in  the  book  of  Lawes, 
nor  to  bee  under  halfe  the  .Value  therein  exprest. 

"8.  That  there  bee  a  high  Sheriffe  for  the  Towne  of  New 
Castle,  the  River  and  Bay:  And  that  the  said  high  Sheriffe 
have  power  to  make  an  Under  SherifTe  or  Marshall  being  a  fiitt 
person,  and  for  whom  hee  will  bee  responsable,  to  be  approved 
by  the  Court,  But  the  Sheriffe,  to  act  as  in  England  &  according 
to  the  now  practice  on  Long  Island,  to  act  as  a  principall  officer 
in  the  Execution  of  the  Lawe,  but  not  as  a  Justice  of  the  Peace 
or   Magistrate. 

"9.  That  there  bee  fitting  books  provided  for  the  Records 
in  which  all  Judiciall  Proceedings  to  be  duely  and  fairely  Entered, 
as  also  all  Publick  Orders  from  the  Governor  And  the  names 
of  the  Magistrates  &  Officers  Authorized,  with  the  time  of  their 
Admission:    the  said  Records  to  bee  kept  in  EngUsh,  To  which 


EARLY  COURTS  OF  PENNSYLVANIA.      25 

all  persons  concerned  may  have  free  Recourse  at  due  orseasonable 
times. 

"10.  That  a  fitt  person  for  Clarke  when  Vacant,  be  recom- 
mended by  each  Court  to  the  Governor  for  his  Approbacon  in 
whose  hands  the  said  Reccords  to  be  kept. 

"11.  That  all  writts,  Warrants  &  Proceedings  at  Law  shall 
be  in  his  Mamies  Name.  It  having  been  practiced  in  ye 
Government  ever  since  the  first  writing  of  the  Law  booke,  And 
being  his  Royall  Highness  Speciall  pleasure  &  Order."' 

The  promulgation  of  the  laws  and  the  more  definite 
instructions  for  the  administration  of  justice  must  have 
given  general  satisfaction,  for  in  their  communications 
with  the  governor  the  justices  seem  to  have  been  in 
doubt  on  many  points,  and  a  delay  in  forwarding  copies 
of  the  laws  seems  to  have  given  them  considerable  anxiety. 
In  a  letter  of  June  8,  1677,  the  magistrates  of  New 
Castle  write:  "We  likewise  humbly  desier  that  the 
sending  of  the  Law  booke  may  not  be  forgot,  there  being 
great  occasions  for  the  same."^ 

It  may  be  interesting  at  this  point  to  give  a  brief 
account  of  the  most  important  civil  suit  fought  out  in 
the  territory  on  the  Delaware  at  this  early  date,  involv- 
ing the  title  to  Tinicum  Island.  It  was  here,  as  we 
have  seen,  that  the  Swedish  governor,  John  Printz, 
established  the  seat  of  government,  building  a  block- 
house, church  and  private  residence  called  Printzhof, 
the  island  having  been  granted  to  him  in  1G43  by  Queen 
Christina  "for  a  bouwery"  as  a  reward  for  his  services.^ 
After  the  Dutch  conquest  his  daughter,  Jeuffro  Arm- 
gart,  wife  of  John  Pappegoya,  the  successor  of  Printz 
as  governor,  was  on  her  petition,  permitted  in  1656  "to 
take  possession  and  cultivate  the  lands  of  her  lord  and 


'  VII  Pennsylvania  Archives  (2d  Series),  783. 
2  VII  Pennsylvania  Archives  (2d  Series),  787,  also  777,  794,  797. 
'VII    Pennsylvania    Archives     (2d     Series),    494;      Hazard's 
Annals  of  Pennsylvania,  70. 


26      EARLY  COURTS  OF  PENNSYLVANIA. 

father."^  Jeuffro  Armgart  as  agent  for  her  father  sold 
the  property  on  May  29,  1(302,  to  Joost  De  LaGrange  who 
paid  one  half  of  the  purchase  money  and  entered  into 
possession.  Trouble  occurred  at  once  over  payment 
of  the  balance.  In  the  latter  part  of  1662  a  bill  of 
exchange  given  by  LaGrange  was  protested,  Jeuffro 
Armgart  recovered  judgment  and  an  appeal  was  taken. 
Printz  died  in  1663  and  Jeuffro 's  power  to  act  for  her 
sisters  was  disputed.  In  the  meantime  the  English 
conquered  the  New  Netherlands,  LaGrange  died  and  his 
widow  married  Andrew  Carr  who  obtained  a  patent  for 
the  island  from  Governor  Lovelace  in  1669.  While  the 
Carrs  were  abroad,  looking  after  an  estate  they  had 
inherited,  Jeuffro  Armgart  returned  with  powers  of 
attorney  from  her  sisters  and  brought  suit  for  the  balance 
of  the  purchase  inoney  at  the  court  of  New  Castle.  The 
case  was  adjourned  or  appealed  to  the  court  of  assizes 
at  New  York,  where  it  was  tried  on  October  twelfth, 
1672.^  Some  of  the  papers  were  in  "high"  and  some 
in  "low"  Dutch  and  the  services  of  an  interpreter  were 
required.  The  defendants'  attorney,  Mr.  Ryder,  pro- 
tested that  Captain  John  Carr's  letter  of  attorney  from 
Andrew  Carr  was  not  sufficient  to  authorize  him  to 
defend  the  suit  and  moved  for  a  continuance,  which  was 
refused.  The  case  was  sent  to  the  jury,  who  brought  in 
a  verdict  for  the  plaintiff  for  the  full  amount  of  her 
claim  upon  which  judgment  was  entered.  In  the  month 
of  January  following  the  governor  and  council  issued 
an  execution  directed  to-  Captain  Edmund  Cantwell, 
high  sheriff  at  New  Castle,  who  was  directed  to  seize 


*  Hazard's    Annals    of    Pennsylvania,    219,  quoting    Albany- 
Records,  Vol.  xvn. 

2  Hazard's    Annals    of    Pennsylvania,    400,   quoting    Albany 
Records,  Court  of  Assizes,  Vol.  II,  293-300. 


EARLY  COURTS  OF  PENNSYLVANIA.      27 

the  land  and  goods  of  the  Carrs,  particularly  Tinicum.^ 
The  latter  island  was  to  be  appraised  and  if  found  of  less 
value  than  the  debt,  the  plaintiff  was  to  be  given  pos- 
session and  a  further  levy  made  on  other  property  of  the 
defendants.  Jeuffro  Armgart  was  accordingly  restored 
to  possession  of  the  island  which  she  sold  to  Justice 
Otto  Ernest  Cock.  The  new  owner  was,  however,  not 
to  rest  in  quiet  possession.  Arnoldus  De  LaGrange,  son 
of  Joost,  w^hen  of  age  returned  to  America  and 
settled  at  New  Castle  where  he  subsequently  became 
a  justice  of  the  peace.  Shortly  after  his  return  he  pre- 
sented to  Governor  Andros  a  petition  for  equitable 
relief  against  the  judgment  of  the  court  of  assizes, 
setting  forth  his  infancy  at  the  time  of  the  trial  and 
other  defects  in  the  proceedings. ^  No  answer  to  the 
petition  is  recorded  but  at  the  last  session  of  the  Upland 
court  before  the  transfer  of  the  territory  to  Penn  held 
June  14,  1681,  suit  was  brought  by  LaGrange  against 
Cock  which  was  postponed  to  the  next  court  "by  reason 
that  there's  noe  court  w^^out  Justice  Otto  whoe  is  a 
party."^  The  case  was  finally  tried  at  a  court  held  at 
Chester  22,  6  mo.  1683,  where  LaGrange  w^as  repre- 
sented by  Abraham  Mann  and  Cock  by  John  White  as 
attorneys  in  the  suit.  The  plaintiff  declared  as  heir 
at  law  and  the  defense  was  that  part  of  the  purchase 
money  had  never  been  paid.  The  verdict  of  the  jury 
as  entered  on  the  record  is : — 

"The  jury  finde  for  ye  Plaint  and  alsoe  give  him  his  costs 
of  suite  and  fforty  shiUings  damage;    the  Plaint  paying  to  ye 


1  V  Pennsylvania  Archives  (2d  Series),  627.  A  second  execu- 
tion was  issued  in  1075  by  Governor  Andros,  V  Pennsylvania 
Archives  (2d  Series),  6G6.  In  Records  of  Court  of  New  Castle, 
page  53,  is  a  suit  by  the  sheriff  against  the  auctioneer  for  the 
amount  reaHzed  at  a  sale  under  this  execution. 

2  VII  Pennsylvania  Archives  (2d  Series),  799. 
»  Records  of  the  Court  at  Upland,  189. 


28      EARLY  COURTS  OF  PENNSYLVANIA. 

Deft  Thirty  &  seaven  pounds  &  Tenne  Shillings,  according  to 
an  agreement  between  ye  Plaint  and  Deft  produced  &  read  in 
this  court  &  alsoe  delivering  ye  Block  House  &  pticuters  in  ye 
same  agreemt  mentioned.     Judgmt  is  thereupon  awarded. "^ 

Here  we  have  an  early,  if  not  the  first,  example  of  a 
conditional  verdict  so  popular  afterwards  in  Pennsyl- 
vania when  an  equitable  defense  was  raised  in  an  action 
of  ejectment.  Execution  issued  on  this  judgment  and 
LaGrange  was  put  in  possession.  Less  than  a  year 
afterward  he  sold  the  island  to  Christopher  Taylor,  the 
first  register  general,  one  of  whose  descendants  left  a 
will  that  gave  rise,  in  the  nineteenth  century,  to  litiga- 
tion as  long  and  stubborn  as  that  we  have  recounted.^ 
The  Printz  mansion  was  destroyed  by  fire  in  1822  but 
it  is  said  that  on  the  site  ancient  bricks  of  a  foreign 
make  and  pale  yellow  color  have  been  found  which  were 
once  a  part  of  this  venerable  structure.^ 

It  would  seem  from  the  above  proceedings  and  from 
an  order  of  Governor  Andros  of  July  17,  1678,*  that  lands 
were  regarded  as  liable  for  debts,  contrary  to  the  com- 
mon law  where  the  creditor's  only  remedy  was  by  writ 
of  elegit  under  which  one  half  of  the  rents  could  be 
taken. ^  Penn's  first  legislation  subjected  lands  to  exe- 
cution to  a  limited  extent,  but  not  until  1700  was  the 


1  Chester  County  Records  quoted  in  Ashmead's  History 
of  Delaware  County,  280;  see,  also.  Memoirs  Long  Island  His- 
torical Society,  Vol.  I,  189. 

-  Hart  V.  Hill,  1  Wharton's  Reports,  124  (1835);  Tinicum 
Fishing  Co.  v.  Carter,  CI  Pennsylvania  Reports,  21  (1869); 
77  Pennsylvania  Reports,  310  (1875);  90  Pennsylvania  Repgrts, 
85  (1879). 

3  Smith's  History  of  Delaware  County,  31. 

*  VII  Pennsylvania  Archives  (2d  Series),  797.  In  the  case  of 
a  decedent,  Andros  seems  to  have  solved  the  question  of  title 
by  directing  that  the  purchaser  should  have  "a  new  pattent 
for  his  title." 

°  III  Blackstone's  Commentaries,  419. 


EARLY  COURTS  OF  PENNSYLVANIA.      29 

whole    land   made   liable    where   no    personal    property 
could  be  found. ^ 

That  land  was  subject  to  seizure  for  debts  under  the 
Dutch  rule  is  indicated  by  the  following  extract  from 
the  minutes  of  Jacquet's  court,  February  14,  1657: — 

"Isack  Allerton  has  had  seized  by  the  Court  Messenger  subject 
to  the  decision  of  the  Hon^^*^  Council,  the  immovable  property 
belonging  to  Peter  Hermausen  here  on  the  river. "^ 

From  such  records  as  have  escaped  destruction  we  are 
enabled  to  present  a  fair  outline  of  the  actual  practice 
in  these  primitive  tribunals,  presided  over  by  laymen 
and  unembarrassed  by  the  conflicting  arguments  of  pro- 
fessional lawyers.  An  adequate  notion  of  the  crudity 
of  the  proceedings  can  be  conveyed  only  by  examples 
from  the  records  which  were  kept  in  the  most  informal 
fashion.  Sometimes  the  entries  are  limited  to  the  names 
of  the  parties  and  the  judgment,  while  in  other  instances 
there  is  a  summary  of  pleadings  and  evidence.  While 
the  names  of  common  law  actions,  such  as  debt,  case 
and  replevin,  are  used  there  is  little  to  indicate  that 
judges  or  parties  had  more  than  a  very  vague  concep- 
tion of  their  scope  and  distinctions.  Thus,  there  is  an 
entry  of  "an  action  of  the  Case  for  twoo  peeces  of 
marrish  &  y^  hay  thereon  mowed. "^  Appeals  to  New 
York  were  frequent  and  were  sometimes  specially  allowed 
by  the  governor,  as  would  appear  from  the  following 
example: — 

"By  the  Governor 

"Upon  the  request  of  Hans  Pieterson,  concerning  several 
Judgmi^s  of  the  Courts  of  New  Castle  &  Upland  in  Delaware 
in  a  case  between  the  sd  Pieterson  &  Do  Lawrentius  Carolus, 

•  Presbyterian  Corporation  v.  Wallace,  3  Rawle's  Reports, 
108  (1831)  at  page  141. 

^    New  York  Colonial  Documents,  Vol.  XII,  IGU. 

3  Records  of  the  Court  of  New  Castle,  355;  .see,  also,  Jegou  v. 
Wright,   Upland  Records,   140. 


30      EARLY  COURTS  OF  PENNSYLVANIA. 

concerning  a  certain  Mare,  The  Jureys  tho'  composed  in  part  of 
the  same  Persons,  yet  brought  in  several  Verdicts,  the  Courts 
having  given  different  Judgm's  accordingly,  &  it  not  appearing 
by  any  Testimonies  what  Mare  was  in  Difference;  I  do  therefore 
hereby  Order,  that  the  Execucons  in  sd  Matter  be  Suspended,  & 
a  full  Acco'^  of  all  sd  Proceeding  in  both  Co'^  be  forthwith  sent  me. 
"Actum  in  New  York  this  28th  day  of  July,  1677. 

"E.  ANDROS. 

"To  the  Courts  of  New  Castle  and  Upland  &  all  Officers  in 
Delaware  whom  it  may  concern."' 

Such  appeals  were  heard  at  the  general  court  of 
assizes  in  the  city  of  New  York,  the  minutes  of  which 
present  a  spirited  picture  of  assembled  worthies.  One 
appeal  from  a  judgment  of  the  court  at  the  Whorekill 
concerning  the  title  to  a  tract  of  land  was  tried  in  1680 
before  the  following  distinguished  company:  the  gov- 
ernor, Sir  Edmund  Andros,  five  members  of  the  council, 
the  mayor  and  five  aldermen  of  New  York,  the  chief 
justice  of  Nantucket,  the  two  commissaries  of  Albany, 
three  justices  from  New  Jersey,  two  from  "Peniquid 
and  parts  eastward,"  and  a  dozen  more  from  Long  Island 
and  New  York.  The  judgment  of  the  lower  court  was 
affirmed  at  the  cost  of  the  appellant. ^  On  another  occa- 
sion (in  IGSl)  a  case  was  tried  in  which  the  defendant, 
one  of  the  justices  of  the  court  at  New  Castle,  was 
accused  of  misconduct  in  his  office. 

"M^  John  Moll  Justice  of  the  Peace  and  President  of  the  Court 
at  Newcastle  being  called  to  Answer  to  an  Indictment  Exhibitted 
against  him  by  one  Abram  Mann  for  severall  Words  and  Ex- 
pressions by  him  said  to  be  uttered  and  spoken  in  Court  and  at 
other  Times,  To  which  the  said  John  Moll  pleaded  not  Guilty, 
and  a  jury  being  Impanelled  and  Sworne  with  several  Evidences 
they  brought  in  their  Verdict  and  found  him  guilty  of  Speaking 
the   Words  mentioned  in  the  first  and  second  Articles  and  of 


1  V  Pennsylvania  Archives  (2d  Series),  692;   see  in  the  court 
below  New  Castle  Records,  88;    Upland  Records,  74. 

2  V  Pennsylvania  Archives  (2d  Series),  721. 


EARLY  COURTS  OF  PENNSYLVANIA.      31 

Denying  Execution  when  demanded,  menconed  in  the  fourth 
Article,  and  for  the  rest  not  Guilty,  the  which  the  Court  taking 
into  Consideration  Do  adjudge  the  said  Indictment  to  be  illegal 
and  vexatious  and  that  the  said  John  Moll  by  what  found  against 
him  is  not  Guilty  of  any  Crime  or  Breach  of  any  known  Law 
Therefore  do  Acquitt  the  said  John  Moll  from  the  same  and 
Order  the  said  Abram  Mann  to  Pay  the  Costs  of  Court.  The 
said  Mann  moved  for  an  Appeale  for  England  which  is  granted 
he  giving  sufificient  Security  to  the  value  of  One  Thousand 
Pounds  to  Prosecute  the  same  and  pay  damage  to  the  Party 
if  lost."' 

It  is  interesting  to  note  that  the  parties  to  this  suit 
were  afterrvards  prominent  in  Penn's  government.  Jus- 
tice Moll  became  a  member  of  the  first  provincial  council 
and  was  one  of  the  committee  that  drew  up  the  amended 
frame  of  government,  or  charter  of  1683,  while  Abram 
Mann  was  a  member  of  the  assembly  from  New  Castle 
in  the  sessions  of  1684-5. 

It  would  not  do  to  omit  mention  of  the  first  state 
trial,  if  it  may  be  so  called,  that  was  held  on  the  Dela- 
ware. Near  the  close  of  1609  a  disturbance  was  created 
by  one  Marcus  Jacobson,  alias  John  Binckson,  but  better 
known  as  "Long  Finne,"  who  pretended  to  be  a  son  of 
Conningsmark,  a  Swedish  general.  Whether  this  so- 
called  insurrection  was  a  serious  attempt  to  overthrow 
the  government,  or  a  mere  riotous  or  seditious  disturb- 
ance, it  was  treated  with  the  utmost  seriousness  by 
Deputy  Governor  Carr  as  well  as  Governor  Lovelace. 
An  order  for  the  Finne's  arrest  was  issued,  and  he  was 
put  in  irons,  while  the  other  persons  implicated  were 
bound  over  for  court.  At  a  meeting  of  the  council  in 
New  York  on  October  18,  1669,  it  was  resolved: — 


'  V  Pennsylvania  Archives  (2d  Series),  722.  Abraham  Mann 
not  satisfied  with  the  judgment  of  the  Court  of  Assizes  attempted 
to  post  on  the  door  of  the  court  at  New  Castle  a  paper  con- 
taining his  version  of  the  proceedings,  in  which  the  court  was 
charged  with  partiality.  A  warrant  was  issued  for  his  arrest 
but  he  fled  up  the  river.     New  Castle  Records,  497,  514. 


32      EARLY  COURTS  OF  PENNSYLVANIA. 

"Vpon  serious  &  due  Consideracon  had  of  the  Insurrection 
begann  by  ye  Long  Finne  at  Delaware,  who  gave  himself  out 
to  bee  son  of  Coningsmarke  a  Swedish  Generall  &  y^  dangerous 
consequences  thereof,  It  is  adjudged  that  ye  said  Long  Finne 
deserves  to  dye  for  the  same.  Yet  in  regard  that  many  others 
beinc  concerned  w^h  him  in  that  Insurrection  might  be  involved 
in  the  Premunire  if  the  rigour  of  the  Law  should  be  ex- 
tended &  amongst  them  divers  simple  and  ignorant  People: 
It  is  thought  fitt  and  Ordered,  that  the  said  Long  Finne  shall 
be  pubHckly  &  severely  whipt  &  stigmatiz'd  or  branded  in  the 
fface  with  the  Letter  (R)  with  an  Inscription  written  in  great 
Letters  &  putt  upon  his  Breast,  That  he  received  that  Punish- 
ment for  Attempting  Rebellion,  after  whch  that  hee  bee  secured 
untill  hee  can  bee  sent  &  sold  to  the  Barbadoes  or  some  other 
of  those  remote  Plantations."' 

But  after  deciding  upon  his  fate,  it  was  determined 
to  try  him  according  to  the  forms  of  law  and  a  special 
commission  was  issued  to  Mathias  NicoUs  and  others 
to  try  him,  whose  instructions  were  to  hold  the  court 
according  to  a  prescribed  form,  which  presents  an  excel- 
lent picture  of  the  practice  then  followed  in  a  criminal 
trial. 

"The  forme  of  holding  the  Co^t  at  the  Fort  in  Newcastle  upon 
Delaware  River  for  the  Tryall  of  the  Long  Finne  &c.  about  the 
late  Insurrection,  Decem.  y^  6th  1669. 

"Vpon  the  meeting  of  the  Court  let  a  proclamation  bee  made  by 
saying,  O  yes,  O  yes,  O  yes,  Silence  is  commanded  in  the  Co't 
whilst  his  Maties  Commissioners  are  sitting  Vpon  paine  of  im- 
prisonment. 

"Lett  the  Commission  be  read  &  the  Commission's  called  vpon 
afterwards,  if  any  shall  bee  absent  Let  their  names  bee  recorded. 

"Then  let  the  proclamacon  bee  made  again  by  O  yes,  as  before, 
after  which  say:  All  manner  of  persons  that  have  anything  to  doe 
at  this  speciall  Co'*  held  by  Commission  from  the  Right  Ho^le 
Francis  Lovelace  Esq.  Governor  Genrl  vnder  his  Royal  High- 
ness the  Duke  of  York  of  all  his  Territories  in  America  draw 
neare  to  give  yoi"  attendance,  and  if  any  one  have  any  plaint  to 


IV   Pennsylvania   Archives    (2d   Series),   579,   582,   584;   VII 
Pennsylvania  Archives  (2d  Series),  723,  725. 


EARLY  COURTS  OF  PENNSYLVANIA.      33 

enter  or  suite  to  prosecute  let  them  come  forth  &  they 
shall  bee  heard. 

"After  this  let  a  jury  of  twelve  good  men  bee  empannelled. 

"Then  let  the  Long  Finne  prisoner  in  the  Fort  bee  called  for  & 
brought  to  the  Barr. 

"Vpon  which  the  jury  is  to  be  called  over  &  numbered  one, 
two  &c.  &  if  the  prisoner  have  no  exception  against  either  of 
them  let  them  bee  sworne  as  directed  in  the  Booke  of  Laws 
for  Tryall  of  Criminals,  and  bid  to  look  vpon  the  prisoner  at  the 
Barre. 

"The  forme  of  the  oath  is  as  folio weth:  You  do  swear  by  the 
Everliving  God  that  you  will  conscientiously  try  and  deliver 
your  verdict  between  o^  Sovaraigne  Lord  the  King,  &  the  prisoner 
at  the  Barre  according  to  evidence  &  the  lawes  of  the  Country, 
so  helpe  you  God  &  the  contents  of  this  booke. 

"Then  let  the  prisoner  bee  again  called  vpon  and  bid  to  hold 
up  his  right  hand : 

"Viz.  John  Binckson  alias  Marcus  Coningsmark  alias  Conings- 
marcus  alias  Mathew  Hincks.   .   .   . 

"Then  proceed  with  the  indictment  as  follows: 

"John  Binckson,  Thou  standest  here  indicted  by  the  name 
of  John  Binckson  alias  Coningsmark  alias  Coningsmarcus  alias 
Mathews  Hinks,  alias,  etc.  for  that  having  not  the  feare  of  God 
before  thine  eyes  but  being  instigated  by  the  devill  vpon  or 
about  the  28th  day  of  August  in  y^  21st  year  of  the  Raigne  of 
or  Soveraigne  Lord  Charles  the  2d  by  the  Grace  of  God  of  England 
Scotland,  France  and  Ireland,  King,  Defender  of  the  Faith  &c. 
Annoque  Domini  1669,  at  Christina  &  at  severall  other  times  & 
places  before,  thou  didst  most  wickedly,  traitorously,  feloniously 
&  maliciously  conspire  and  attempt  to  invade  by  force  of  armes 
this  Government  setled  vnder  the  allegiance  and  protection 
of  his  Ma  ties  &  also  didst  most  traitorously  solicit  &  entice 
divers  &  threaten  others  of  his  Mamies  good  subjects  to  betray 
their  allegiance  to  his  Mamies  the  King  of  England  persuading 
them  to  revolt  &  adhere  to  a  forraign  prince,  that  is  to  say, 
to  the  King  of  Sweden  In  prosecution  whereof  thou  didst  appoint 
and  cause  to  bee  held  Riotous,  Routous  &  VnlawfuU  Assemblyes, 
breaking  the  Peace  of  o^  Sovereign  Lord  the  King  and  the  laws 
of  this  Government  in  such  cases  provided  John  Binckson  &c 
what  hast  thou  to  ^ay  for  thyself,  Art  thou  guilty  of  the  felony  & 
treason  la  yd  to  thy  charge  or  not  guilty.  If  hee  says  not  guilty, 
then  ask  him  By  whom  wilt  thou  be  tryed.  If  hee  say  be  God  & 
his  countrey,  say,  God  send  the  a  good  deliverance. 


34      EARLY  COURTS  OF  PENNSYLVANIA. 

"Then  call  the  witnesses  and  let  them  bee  sworne  either  to 
their  testimony  already  given,  in  or  to  what  they  will  then  declare 
upon  their  oaths. 

"Vpon  which  the  jury  is  to  have  their  charge  giving  them 
directing  them  to  find  the  matter  of  Fact  according  to  the 
Evidence  and  then  let  them  bee  called  over  as  they  go  out  to 
consult  upon  their  verdict  in  which  they  must  all  agree. 

"When  the  jury  returns  to  deliver  in  their  verdict  to  the  Cort 
let  them  bee  called  over  againe  &  then  askt;  Gents,  are  you 
agreed  upon  your  verdict  in  this  case  in  difference  between  o' 
soveraign   Lord  the   King  &  the  prisoner  at  the  Barr.      Upon 

their  saying  yes  aske  who  shall  speak  for  you.    Then  the  . 

bring  in  their  verdict  &  the  ....  then  read  the  verdict  and  say: 
Gentlemen,  this  is  y^  verdict  upon  which  you  are  all  agreed; 
upon  their  saying  yes,  call  that  the  prisoner  bee  taken  from 
the  barre  &  secured."' 

As  a  matter  of  course  the  Finn  was  convicted  and 
sentenced.  The  last  we  hear  of  him  is  in  this  minute 
of  the  council,  January  25,  1669-70: — 

"This  day  ye  Long  ffinne  called  Marcus  Jacobsen  was  by 
warrt  put  on  board  Mr.  Cosseans  Ship  called  y^  Fort  Albany 
to  be  Transported  &  sould  at  ye  Barbadoes  according  to  y^ 
sentence  of  Court  at  Delaware  for  his  attempting  rebellion.  He 
had  beene  a  prisoner  in  ye  State  house  ever  since  ye  20th  day  of 
Decembr  last."^ 

We  are  fortunate  in  possessing  portions  of  the  records 
of  the  county  courts  during  this  period.  That  of  Upland 
is  particularly  interesting  as  presenting  a  complete 
record  of  the  first  county  court  on  Pennsylvania  soil 
from  the  year  1676  to  the  announcement,  in  June,  1681, 
of  the  transfer  of  the  government  to  William  Penn.  In 
the  commissions  issued  by  the  governor  six  justices  of  the 
peace  are  named,  any  three  or  more  of  whom  may  hold 
court,  the  commissions  to  be  in  force  for  one  year  or 
until  further  order.     It  would  be  tedious  to  recite  the 


1  VII  Pennsylvania  Archives  (2d  Series),  728. 

2  VII  Pennsylvania  Archives  (2d  Series),  731. 


EARLY  COURTS  OF  PEXXSYLVANIA.      35 

manifold  duties  performed  by  the  justices,  whose  func- 
tions included  those  now  delegated  to  the  county  com- 
missioners, directors  of  the  poor  and  auditors  as  well  as 
those  pertaining  strictly  to  their  judicial  office.  They 
granted  applications  for  taking  up  land,  took  acknowl- 
edgments of  deeds,  and  exercised  a  general  supervision 
over  the  churches,  the  repair  of  the  highways,  the 
maintenance  of  fences,  the  sale  of  the  time  of  bound 
servants,  and  even  recorded  the  earmarks  of  cattle. 

The  expenses  connected  with  the  sittings  of  the  courts 
were  supposed  to  be  met  by  the  fees  and  fines  imposed, 
but  these  were  not  always  easily  collected  and  the 
Upland  justices  record  in  one  place  that  they  are  "in 
great  want  of  some  meanes  to  pay  and  defray  their 
necessary  charges  of  meat  and  drinke."^  The  court  at 
the  Whore  kill,  the  name  of  which  had  been  changed  to 
Deal,  made  this  clever  bargain : — 

"It  is  agreed  and  Concluded  upon  by  the  Court  and  Alexander 
Moulston  as  foUoweth;  that  from  the  first  day  of  this  moneth 
the  said  Alexander  Moulston  shall  have  to  his  owne  proper  use 
all  the  Amacements  that  doe  from  that  day  becom  due  to  the 
court  for  one  whole  yeare;  and  that  the  said  Alix  Moulston  doe 
Ingage  to  find  and  allow  the  Justices  of  this  Court  for  the  time 
being  and  there  friends  and  strangers  with  house  roome  and 
diett  And  one  gallon  of  Rum  and  wine  for  every  Court  during 
the  said  year."^ 

Actions  for  the  recovery  of  debts,  for  assault  and 
battery  and  slander  predominate.  It  would  seem  that 
the  judges  sometimes  found  it  necessary  to  appeal  to 
their  own  tribunal,  as  the  following  case  shows: — 

"Justice  Otto  Ernest  Coch  Pit.  \  In  an  action  of  slaunder 

"Moens  Petersen  Staecket  Deft.        ^  &  defamat. 

"The  pit  Complaines  that  this  deft,  maliciously  has  defamed 
and  most  highly  slaundered    him   in    his    Honor  &    reputation 

•  Records  of  the  Court  at  Upland,  160. 
'  Sussex  Records  (Turner),  69. 


36      EARLY  COURTS  OF  PENNSYLVANIA. 

by  terming  him  a  hogh  theef,  desires  that  this  deft  (if  hee  or 
any  others  can)  will  prove  ye  same,  or  otherwayes  that  hee 
may  bee  punisht  according  to  La  we. 

"The  deft  sayes  and  protests,  that  hee  never  Knew  heard  or 
sawe,  that  this  Pit  was  guilty  of  any  such  fact,  and  that  hee 
to  his  knowledge  never  sayed  any  such  thing,  but  if  that  he 
hath  sayed  itt  (as  the  witness  doe  afirme:)  that  itt  must  haue 
been  in  his  drink,  hee  humbly  desires  forgivenesse,  sence  hee 
finds  himselfe  in  a  great  fault; 

"Hans  Jurian,  william  orian  &  andries  homman  sworne  in  Co^t 
declare  that  they  haue  heard  moens  Peterss  Staecket  say  in  full 
tearmes  &  substance,  Mr.  Otto  is  a  hogh  theef  of  ye  one  &  andries 
Boen  of  ye  other  syde  &  further  say  nott; 

"The  Court  haueing  heard  ye  Case  doe  order  that  ye  deft :  shall 
publicqly  in  open  Court  declare  that  hee  has  wrongfully  falsly  & 
malisiously  slaundered  &  blamed  this  pi*  and  doe  further  fyne 
him  for  an  Example  to  others  to  pay  the  sume  of  one  thousand 
gilders  wth  the  Costs; 

"The  deft,  did  willingly  in  open  Court,  declare  as  above  & 
humbly  desires  forgivenesse  &  prayes  that  ye  fyne  may  bee 
remitted.  Upon  ye  Intercession  of  Justice  Otto  Ernest,  the  Co't 
did  remit  ye  fyne  aboved."  • 

Judgments  are  entered  sometimes  in  guilders  and 
stivers  and  sometimes  in  pounds  of  tobacco,  wheat  or 
other  products.  In  one  case  at  Upland  the  court 
ordered  the  defendant  to  pay  the  plaintiff  "twenty  gilders 
in  wheat  and  twenty  six  in  pompkiens."^ 

A  case,  showing  the  primitive  practice,  from  the 
commencement  to  the  termination  of  a  suit,  is  that  of^ — 


1  Upland  Court  Records,  180.  In  another  case  of  slander  the 
court  fined  the  defendant  and  ordered  "that  ye  defendant  openly 
shall  declare  him  selfe  a  Lyar,"  page  176.  "In  the  Norman 
Custumal  it  is  written  that  the  man  who  has  falsely  called 
another  'thief  or  'manslayer'  must  pay  damages,  and,  holding 
his  nose  with  his  fingers,  must  publicly  confess  himself  a  liar." 
Pollock  and  Maitland  History  English  Law,  II,  537. 

2  Records  of  the  Court  at  Upland,  156. 


EARLY  COURTS  OF  PENNSYLVANIA.      37 

"James  Sanderlins  pit    - 
agst 

"John  Edmunds  of 

maryland       Deft 

"The  pit  demands  by  bill  from  this  deft,  ye  sume  of  12001b 
of  good  &  merchandable  Tobbacco  &  Caske  to  bee  paid  in  Great 
Chaptank  River  in  maryland  on  all  demands  after  ye  10th  of 
October  1675;  as  by  the  said  bill  under  ye  hand  and  scale  of  the 
deft  bearing  date  ye  9th  of  June  1675;  &  produced  in  Court  did 
more  att  Large  appeare,  the  pit  further  declaring  &  prooveing 
in  Court  that  hee  hath  made  severall  Legall  demands  of  the  sd 
debt,  and  y^  the  same  was  not  paid  to  this  day,  desiering  that 
this  Cort  would  be^  pleased  to  grant  him  Judgemt  agst  ye  de^t 
and  to  allow  of  his  attachment  Laid  upon  a  certaine  great 
Boate  or  shiallop  &  appurtenances  now  att  upland — That 
the  same  might  bee  publicqly  sould  and  the  pi*  payed  his  Just 
due  wth  ye  Costs; 

"m^  waiter  wharton  one  of  the  witnesses  to  ye  sd  bill  being 
sworne  in  Court  declared  that  hee  was  p^sent  and  did  see  John 
Edmundsen  signe  seale  and  deliver,  the  abovesaid  bill  of  1200 
lb  of  Tobacco,  to  James  Sanderlins; 

"The  Court  haueing  Examined  into  ye  businesse,  and  finding 
the  Case  to  bee  Just,  did  order  that  Judgment  bee  Entered 
against  the  deft:  John  Edmunds,  for  the  paymt  of  ye  sd.  1200 
lb  of  Tobacco,  or  the  True  vallue  thereof,  and  alloweing  of  ye 
Pits  attachmt  doe  hereby  order  the  vendu  master,  to  sell  the 
boate  &  appurtenances,  this  Courtday  to  the  most  bidders, 
out  of  which  hee  to  pay  James  SanderHns  his  debt  wth  ye  Costs, 
and  the  overplus  to  bee  returned  to  John  Edmunds  or  his  order; 

"According  to  the  aboves^  order  of  Cort  was  this  day  being  ye 
12th  of  Novembr,  by  publicq  outcry  sould  unto  m^  John  Test,  as 
ye  highest  bidder  the  boate  &  appurtenances  for  ye  sume  of 
six  hundred  and  twenty  fyve  gilders;  to  bee  paid  in  New  Castle 
with  merchandable  Tobbacco  &  Caske  dutch  wth  &  tarr  att  8 
styvers  pr  lb  or  wth  merchandable  wheat  at  5  gilders  pr  schipple 
att  or  before  ye  Laest  of  march  next  Ensuing,  as  by  the  Con- 
ditions of  sale  upon  ye  fyle  att  Large  doth  &  may  appeare; 

"James  Sanderlins  bound  himselfe  as  security  for  ye  true  pay- 
ment of  ye  aboves  625  gilders  according  to  the  conditions"' 

As  these  proceedings  occurred  all  on  one  day,  the 
parties  could  not  complain  of  the  delays  of  the  law. 

'  Records  of  the  Court  at  Upland,  111. 


3^1841 


38      EARLY  COURTS  OF  PENNSYLVANIA. 

What  would  a])pear  to  be  the  first  recorded  action  for 
negHgence  is  entered  as  follows  on  the  New  Castle 
records : — 

"Mounes  Powell  pit 

"Hans  Pietersen  Deft 

"The  pit  declares  that  this  de^*  about  one  Jeare  sence  was  the 
occascon  that  he  the  pit  lost  the  use  of  his  boddy  so  that  he  was 
&  is  not  able  to  worke  for  his  wife  and  family  and  therefore 
humbly  craves  that  the  de^*  may  be  ordered  to  hire  a  servant 
for  him  until  he  bee  restored  to  health: — The  court  having  heard 
the  answer  of  the  deft  and  finding  by  the  evidence  sworne  in 
court,  as  also  by  the  p^t  owne  confession  that  it-t  was  an  accidental 
mischange,  doe  order  that  the  deft  shall  pay  the  curing  to  the 
doctors  bill  this  date  and  moreover  Pay  unto  the  pit  in  regard 
of  his  smart  and  Payne  w^h  the  pit  hath  suffered  the  sume  of 
one  hundred  and  fifty  gilders  and  pay  cost  of  sute."' 

In  another  case  in  1679  a  mortgage  is  foreclosed: — 

"John  Moll  pit 

"Robberd  Hutchinson  Deft 

"The  pit  declares  that  one  Daniel  Linsy  being  his  debtor  the 
sume  of  847  lb  of  Tobacco  &  Caske  did  on  ye  day  of  167  ;  mort- 
gage Trasport  &  make  over  unto  this  Plt  a  Certain  peece  of 
Land  Lying  in  Appoquenemen  Creeke,  above  y^  old  Landing 
wch  sd  mortgage  and  Transpi"t  was  to  bee  void  upon  ye  payment 
of  ye  sd  8471b  of  tobb  att  ye  time  in  ye  s^deed  Exprest,  as  by 
the  sfl  mortgage  bearing  date  as  above  more  att  Largedid  appeare 
and  that  this  deft  Robberd  hutchinson,  haueing  sence  bougt 
the  sd  Land  from  ye  sd  Linsey  did  promise  to  pay  ye  plt  his 
sd  debt  wch  being  nott  performed,  The  Plt  is  now  forced  to  Com- 
mence his  action  in  Lawe,  and  humbly  Craues  this  Co'ts  order 
so  that  hee  may  haue  ye  forfeiture  and  benefitt  of  his  aforesd 
mortgage  and  that  hee  may  bee  put  in  peaceable  Possession  of 
the  sd  Land  according  to  s^  deed.  The  Co't  haueing  Examined 
the  premises  doe  Judge  that  according  to  Lawe  and  the  s^  deed 
the  Land  aboves^  is  forfeited  and  belonging  to  ye  plt  and  therefore 
do  order  that  the  Plt  bee  put  in  Lawfull  Possession  thereof."^ 

'  Records  of  the  Court  of  New  Castle,  9. 
2  Records  of  the  Court  of  New  Castle,  341. 


EARLY  COURTS  OF  PENXSYLVAXIA.      39 

A  case  that  perplexed  the  justices  at  Deal  involved  a 
gambling  contract. 

"Henry  Bowman  Plt,  James  Welles  and  John  Newall  defts. 
The  pit  declare  that  the  defts  did  contract  &  agree  wth  him  to 
Run  A  horse  Race  for  three  thousand  pounds  of  Tobacco;  and 
that  he'the  said  Pl*  ded  wine;  the  deft  pleaded  that  the  Contract 
was  not  confirmed,  the  cause  being  debated  on  both  sides  and 
severall  witnesses  Examined  the  Cause  was  Referred  to  a  Jurey; 
•^ch  went  out  and  brought  in  there  verdict;  that  they  finde  for 
the  pit  with  Cost  of  suit  and  one  shill  Damages;  and  the  defts 
arest  the  Judgmt  of  the  Court  &  craved  an  Appeale  to  have 
the  Cause  to  be  Tryd  at  the  next  Gennarall  Court  of  Assisses 
at  New  York  befor  the  Honorable  Governor  and  Councell; 
the  vallow  being  under  twenty  pounds  the  Court  Could  not 
agree  weather  it  was  appealeable  or  not;  and  soe  refered  the 
same  untill  the  next  Court;  there  being  sume  thing  dubous 
in  the  Testament  of  the  Wittnesses."' 

A  competent  authority  has  remarked,  "the  whole 
method  of  practice  was  rather  a  dispensation  of  justice, 
as  the  idea  of  it  existed  in  the  heads  and  was  tempered 
by  the  hearts  of  the  judges,  than  the  administration 
of  any  law  written  or  unwritten.""  And  yet  when  we 
remember  that  these  men  were  all  laymen,  pioneers 
on  the  border  of  the  wilderness,  whose  true  business 
was  to  clear  the  forests  and  till  the  soil,  and  whose 
judicial  office  was  a  burdensome  duty,  performed  at  a 
considerable  sacrifice  of  time  and  money  in  the  interest 
of  their  little  communities,  that  they  were  without 
books  or  forms  and  sometimes  without  blank  books  in 
which  to  write  their  records,  we  may  wonder  that  they 
did  so  well.^  The  justices  of  these  courts  as  members 
of  the  provincial  council,  as  assemblymen,  and  as  judges, 
played  their  part  in  the  "Holy  Experiment"  heralded 


'  Sussex  Records  (Turner),  57. 

2  Smith's  History  of  Delaware  County. 

3  VII  Pennsylvania  Archives  (2d  Series),  777. 


40      EARLY  COURTS  OF  PENNSYLVANIA. 

in  the  last  entry  in  the  Upland  records.  This  entry, 
the  last  official  act  under  the  Duke  of  York's  adminis- 
trat  on,  is  a  notice  to  the  magistrates  of  the  cession  of 
the  territory  to  William  Penn  and  a  direction  that  they 
should  yield  due  obedience  to  the  new  proprietor.  Here 
then  it  is  that  the  histories  of  the  commonwealths  of 
Pennsylvania  and  Delaware  begin,  if  commonwealths 
may  be  said  to  have  a  beginning. 

On  March  4,  1681,  the  province  of  Pennsylvania  was 
granted  by   King  Charles  II  to  William  Penn,  son  of 
Vice  Admiral  Penn,  to  whom  a  considerable  debt  was 
then  owing  by  the  Crown. ^     It  would  be  tempting  at  this 
point  to  turn  aside  and  discuss  the  character  and  career 
of  the  remarkable  man  who  founded  the  commonwealth 
of  Pennsylvania.     Much  has  been  written  about  him  and 
yet  it  is  doubtful  if  he  has  received  his  real  due  from 
history.     William  Penn  was  an  idealist,  perhaps  in  some 
respects  a  visionary  man,  and  yet  many  of  his  views 
were  eminently  sensible  and  fundamentally  sound.     The 
leader  of  an  exclusive  religious  sect,  the  welcome  guest 
at  court,  the  friend  alike  of  James  II,  of  Algernon  Sydney 
and  of  John  Locke,  a  man  of  brilliant  parts  and  attrac- 
tive   personality,    yet    modest,    generous,    tolerant    and 
forgiving,  the  nobility  of  his  character  as  revealed  in  his 
writings  and  conduct  is  worthy  of  our  highest  admira- 
tion,  little   as   it   was  appreciated    by  those  who,   like 
Franklin,  owed  much  of  their  prosperity  to  his  "Holy 
Experiment,"   but   could   not   understand   his   motives. 
To  his  enlightened  benevolence  and  faith  in  mankind, 
civilized  and  savage,  was  due  the  early  prosperity  and 
progress  of  the  commonwealth.     As  a  German  writer 
has  well  observed,  "Of  all  the  colonies  that  ever  existed 
none  was  ever  founded  on  so  philanthropic  a  plan,  none 
was  so  deeply  impressed  with  the  character  of  its  founder, 


1  Charter  and  Laws  of  Pennsylvania,  81. 


EARLY  COURTS  OF  PEXXSYLVAXIA.      41 

none  practised  in  a  greater  degree  the  principles  of 
toleration,  liberty  and  peace,  and  none  rose  and  flour- 
ished more  rapidly  than  Pennsylvania.  She  was  the 
youngest  of  the  British  colonies  established  before  the 
eighteenth  century,  but  it  was  not  long  before  she  sur- 
passed most  of  her  elder  sisters  in  population,  agricul- 
ture and  general  prosperity."^ 

An  analysis  of  the  charter  granted  to  Penn  belongs 
rather  to  constitutional  history  than  to  our  subject. 
The  English  government  was  daily  becoming  more 
impressed  with  the  importance  of  the  colonies  in  America, 
and  in  consequence  the  document  was  drawn  with  more 
care  for  the  royal  prerogative  than  the  earlier  charters. 
One  of  the  most  important  of  its  provisions  was  that 
requiring  a  transcript  of  all  laws  made  and  published  in 
the  province  to  be  transmitted  within  five  years  to  the 
privy  council,  and  if  ■v\dthin  six  months  such  laws  should 
be  declared  inconsistent  wath  the  king's  prerogative  or 
sovereignty,  the  same  should  be  declared  void,  other- 
wise to  remain  in  full  force.  Penn  was  given  full  power 
to  make  laws,  with  the  advice  and  consent  of  the  free- 
men of  the  country  or  their  deputies  in  assembl3^  to 
appoint  judges,  justices  and  other  judicial  officers,  to 
pardon  crimes,  treason  and  willful  and  malicious  murder 
excepted,  and  to  "do  all  and  every  other  thing  and 
things  which  unto  the  complete  establishment  of  justice, 
unto  courts  and  tribunals,  forms  of  judicature  and 
manner  of  proceedings  do  belong,"  and  by  judges 
appointed,  to  award  process,  hold  pleas  and  determine 
all  actions,  suits  and  causes  whatsoever,  as  well  criminal 
as  civil,  personal,  real  and  mixed.  By  three  deeds  the 
Duke  of  York  conveyed  to  Penn  the  territory  covered 
by  the  charter  and  the  three  lower  counties. 


'  Eberling's  Historj^  of  Pennsylvania  quoted  in  Janney's  Life 
of  Penn  and  1  Hazard  Pa.  Reg.  340. 


42      EARLY  COURTS  OF  PENNSYLVANIA. 

On  April  10,  KiSl,  Penn  commissioned  his  cousin, 
William  Markham,  to  be  deputy  governor,  who  arrived 
on  tlie  Delaware  about  the  first  of  July  following.  His 
first  act  was  to  call  a  council  and  on  November  30th 
we  find  him  holding  court  at  Upland.  Prior  to  this  we 
have  the  first  entry  in  the  records  of  the  Upland  Court  as 
part  of  the  province  of  Pennsylvania.*  Nine  justices 
are  recorded  as  present.  The  first  cases  tried  were  two 
cross  actions  of  assault  and  battery  in  which  all  parties 
were  convicted  and  fined. ^ 

Before  sailing  for  America  Penn  drew  up  his  famous 
"Frame  of  Government,"  the  original  manuscript  of 
which,  with  interlineations  and  notes  in  the  handwriting 
of  his  friends,  is  preserved  in  the  archives  of  the  His- 
torical Society  of  Pennsylvania.^  Penn  was  a  close 
student  of  political  institutions  and  lived  at  a  time 
when,  in  his  own  words,  there  was  "nothing  the  wits  of 
men  are  more  busy  and  divided  upon."  He  like  many 
of  his  coreligionists  had  suffered  imprisonment  for  con- 
science sake.  The  account  of  his  trial  is  a  fair  picture 
of  the  administration  of  justice  in  the  principal  criminal 
court  of  London  during  the  Stuart  period."  When  we 
read  those  stirring  pages  we  can  understand  the  sus- 
picion with  which  the  courts  were  regarded  by  the 
colonists  and  their  exaggerated  faith  in  trial  by  jury. 
Fear  of  judicial  oppression,  in  fact,  had  a  marked  influ- 
ence on  the  development  of  our  courts,  was  instrumental 
in  checking  the  growth  of  chancery  jurisdiction  for 
several  generations  and  was  the  primary  cause  of  that 
jealousy  of  the  judiciary  which  was  long  a  feature  of 
local  politics. 

1  The  justices  at  New  Castle  in  a  letter  to  the  deputy  governor 
at  New  York  dated  November  11,  1681,  refer  to  "Pensilvania." 

2  Hazard's  Annals  of  Pennsylvania,  525. 

3  Pennsylvania  Historical  Magazine,  Vol.  XXX,  6. 
*  6  Howell's  State  Trials,  951  (1670). 


EARLY  COURTS  OF  PEXNSYLVAXIA.      43 

Penn,  although  he  had  grown  up  in  a  period  of  political 
unrest,  was  eminently  practical  in  his  ideas  of  govern- 
ment. He  was  a  believer  in  men  rather  than  in  methods. 
In  the  preface  to  the  Frame  of  Government  he  says: — • 

"But  lastly  when  all  is  said,  there  is  hardly  one  frame  of 
government  in  the  world  so  ill  designed  by  its  first  founders, 
that  in  good  hands  would  not  do  well  enough;  and  story  tells 
us,  the  best  in  ill  ones  can  do  nothing  that  is  great  or  good; 
witness  the  Jewish  and  Roman  states.  Governments,  like  clocks, 
go  from  the  motion  men  give  them,  and  as  governments  are 
made  and  moved  by  men,  so  by  them  they  are  ruined  too. 
Wherefore  governments  rather  depend  upon  men,  than  men 
upon  governments.  Let  men  be  good,  and  the  government  can- 
not be  bad;  if  it  be  ill,  they  will  cure  it.  But  if  men  be  bad, 
let  the  government  be  never  so  good,  they  will  endeavor  to 
warp  and  spoil  to  their  turn."' 

Under  the  system  of  government  first  established  by 
Penn  the  executive  powers  were  vested  in  the  governor 
and  provincial  council,  while  the  legislative  powers  were 
vested  in  the  governor,  provincial  council  and  general 
assembly  of  the  representatives  of  the  freemen  of  the 
province.  The  provincial  council  was  an  elective  body 
not  only  associated  with  the  governor  in  the  ordinary 
executive  duties  but  also  charged  with  the  preparation 
of  all  new  laws,  which  after  publication,-  were  to  be 
submitted  to  the  general  assembly  for  approval.  Both 
council  and  assembly  were  designed  on  generous  pro- 
portions but  at  the  request  of  the  colonists  the  mem- 
bership in  both  bodies  was  greatly  reduced.^  The  courts 
were  to  be  erected  by  the  governor  and  council,  the 
latter  body  nominating  a  double  number  of  candidates 

'  Charter  and  Laws  of  Pennsylvania,  92. 

=*  For  form  of  promulgation,  see  Minutes  of  Council,  2,  2  mo. 
1686,  I  Colonial  Records,  122. 

*  The  original  Frame  of  Government  as  drawn  up  by  Penn 
was  amended  at  an  assembly  held  at  Philadelphia  March  1, 
1683,  Charter  and  Laws  of  Pennsylvania,  93,  123.  Penn's  first 
dlan  contained  the  principle  of  initiative  and  referendum. 


>» 


44      EARLY  COURTS  OF  PENNSYLVANIA. 

from  whom  the  governor  was  to  select  a  proper  number 
for  each  office.  This  last  provision  did  not  work  well 
in  practice,  as  it  was  difficult  to  get  enough  me;i  of  the 
right  sort  to  fill  the  commission  of  the  peace,  as  the 
minutes  of  the  council  clearly  show. 

It  will  be  seen  that  the  courts,  as  such,  played  but  a 
subordinate  part  in  the  constitutional  system.  Indeed 
the  conception  of  the  judiciary  as  a  coordinate  branch 
of  the  government  was  as  yet  unrealized;  balanced  con- 
stitutions were  the  final  products  of  the  eighteenth  cen- 
tury, the  seventeenth  was  concerned  with  the  funda- 
mental rights,  liberties  and  privileges  of  the  subject. 
These  rights,  as  applied  in  the  administratoin  of  justice, 
were  embodied  in  the  "Laws  agreed  upon  in  England," 
and  published  with  the  Frame  of  Government.  It  is 
therein  declared — 

"That  in  all  courts  all  persons  of  all  persuasions  may  freely 
appear  in  their  own  way,  and  according  to  their  own  manner, 
and  there  personally  plead  their  own  cause  themselves,  or  if 
unable,  by  their  friends.  And  the  first  process  shall  be  the 
exhibition  of  the  complaint  in  court,  fourteen  days  before  the 
trial;  and  that  the  party  complained  against  may  be  fitted 
for  the  same,  he  or  she  shall  be  summoned  no  less  than  ten  days 
before,  and  a  copy  of  the  complaint  delivered  him  or  her,  at 
his  or  her  dwelling  house.  But  before  the  complaint  of  any 
person  be  received,  he  shall  solemnly  declare  in  court,  that  he 
believes  in  his  conscience  his  cause  is  just. 

"That  all  pleadings,  processes,  and  records  in  courts,  shall  be 
short,  and  in  English,  and  in  an  ordinary  and  plain  character, 
that  they  may  be  understood,  and  justice  speedily  administered. 

"That  all  trials  shall  be  by  twelve  men,  and  as  near  as  may  be 
peers,  or  equals,  and  of  the  neighborhood,  and  men  without 
just  exception.  In  cases  of  life,  there  shall  be  first  twenty  four 
returned  by  the  sheriff  for  a  grand  inquest,  of  whom  twelve 
at  least  shall  find  the  complaint  to  be  true;  and  then  the  twelve 
men  or  peers,  to  be  likewise  returned  by  the  sheriff  shall  have 
the  final  judgment.  But  reasonable  challenges  shall  be  always 
admitted  against  the  said  twelve  men  or  any  of  them. 

"That  all  fees  in  all  cases  shall  be  moderate,  and  settled  by  the 
Provincial  'Council  and  General  Assembly,  and  be  hung  up  in  a 


EARLY  COURTS  OF  PENNSYLVANIA.      45 

table  in  every  respective  court;  and  whosoever  shall  be  convicted 
of  taking  more,  shall  pay  two-fold,  and  be  dismissed  his  employ- 
ment, one  moiety  of  which  shall  go  to  the  party  wronged."' 

These  provisions  were  enacted  into  law  at  assemblies 
held  December  10,  1682,2  ^^d  March  1,  1683.^  Indeed 
the  first  and  third  paragraphs  were  at  the  latter  session, 
included  among  the  "fundamental  laws"  not  to  be 
altered  without  the  consent  of  the  governor  and  six- 
sevenths  of  the  freemen  of  the  province.-*  This  early 
attempt  to  discriminate  between  the  general  body  of 
law  and  certain  laws  which  were  regarded  as  "more 
essentially  requisite"  to  the  well  being  of  the  state  is 
of  interest  to  the  student  of  constitutional  law.  It 
shows  that  at  this  early  period  the  feeling  was  present 
that  some  laws,  not  necessarily  political,  ought  to  be 
marked  out  for  a  special  sort  of  permanence;  a  feeling 
that  has  led  to  the  development  of  the  modern  state 
constitution,  absurdly  complex  and  overloaded  with  non- 
political  details. 

Notable,  also,  are  the  provisions  for  the  commence- 
ment of  actions  by  an  informal  complaint  and  for 
brevity  and  simplicity  in  the  pleadings  and  cour"  records, 
which  although  in  keeping  with  the  primitive  local 
custom  were  as  code  provisions  a  radical  departure 
from  the  common  law,  too  radical,  in  fact,  to  withstand 
the  growth  of  professional  feeling  in  the  eighteenth  cen- 
tury. Penn's  more  liberal  contemporaries  would  not 
have  thought  of  imposing  upon  a  raw  community  the 
artificial  system  of  England  in  its  entirety,  but  few 
would  have  committed  themselves  to  so  radical  a  stand 


*  Charter  and  Laws  of  Pennsylvania,  100. 

^  Charter  and  Laws  of  Pennsylvania,  117. 

^  Charter  and  Laws  of  Pennsylvania,  128. 

^  Charter  and  Laws  of  Pennsylvania,  154;  Reinch's  Colonial 
Common  Law,  Essays  in  Anglo-American  Legal  History,  Vol.  I, 
397. 


46      EARLY  COURTS  OF  PENNSYLVANIA. 

tor  permanent  reform.  As  it  happened  lawyers  soon 
emigrated  to  the  province,  bringing  with  them  their 
cherished  technicaHties,  and  the  old  forms  slowly  but 
surely  crept  into  use.  Penn,  indeed,  was  too  much  of  a 
utilitarian  to  fully  realize  how  deeply  even  the  more 
cumbersome  and  fantastic  features  of  the  common  law 
were  rooted  in  the  habits  and  customs  of  the  people. 
We  are  reminded  of  his  famous  colloquy  with  Mr. 
Recorder  Howell  at  his  trial: — 

Penn.  "I  desire  you  would  let  me  know  by  what  law  it  is 
you  prosecute  me  and  upon  what  you  ground  your  indictment." 

Recorder.      "Upon  the  common  law." 

Penn.      "Where  is  that  common  law?" 

Recorder.  "You  must  not  think  that  I  am  able  to  run  up 
so  many  years  and  over  .so  many  adjudged  cases  which  we  call 
common  law  to  answer  your  curiosity." 

Penn.  "This  answer  I  am  sure  is  very  short  of  my  question 
for  if  it  be  common,  it  should  not  be  so  hard  to  produce." 

Penn,  like  Bentham,  would  seem  to  have  the  best  of 
the  argument,  but  a  century  and  a  half  passed  before 
New  York  broke  the  chains  of  tradition  in  the  code  of 
1848. 

After  a  "prosperous  passage  of  about  two  months," 
Penn  arrived  before  New  Castle  on  the  twenty-seventh 
of  October,  1682,  and  demanded  livery  of  seisin  from 
the  commissioners  appointed  by  the  Duke  of  York. 
The  ceremony  took  place  on  October  twenty-eighth  and 
is  thus  reported  by  John  Moll: — 

"Whereupon  by  virtue  of  the  power  given  unto  us  by  the 
abovementioned  letters  of  attorney,  we  did  give  and  surrender 
in  the  name  of  his  royal  highness,  unto  him  the  said  William 
Penn,  Esq.,  actual  and  peaceable  possession  of  the  fort  of  New 
Castle,  by  giving  him  the  key  thereof,  to  lock  upon  himself 
alone  the  door,  which  being  opened  by  him  again,  we  did  deliver 
also  unto  him  one  turf,  with  a  twig  upon  it,  a  porringer  with 
river  water  and  soil,  in  part  of  all  what  was  specified  in  the 


EARLY  COURTS  OF  PENNSYLVANIA.      47 

said  indenture  or  deed  of  enfeoffment  from  his  royal  highness, 
and  according  to  the  true  intent  and  meaning  thereof."' 

One  of  his  first  acts,  after  taking  possession,  was  to 
commission  six  justices  of  the  peace  for  New  Castle  and 
to  send  out  notices  for  the  holding  of  a  court. ^  At  this 
court,  which  was  attended  by  several  of  the  council, 
as  well  as  the  justices,  Penn  delivered  an  address  stating 
his  purpose  to  call  an  assembly  and  recommending  the 
magistrates,  in  the  interim,  to  follow  the  laws  of  the 
Duke  of  York.  Before  the  end  of  the  year  the  province 
of  Pennsylvania  was  divided  into  three  counties,  Phila- 
delphia, Bucks,  and  Chester  (which  replaced  Upland), 
and  the  lower  territories  into  three  also.  New  Castle, 
as  before,  while  of  the  two  counties  into  which  the  Whore- 
kills  had  been  divided.  Deal  became  Sussex,  and  St. 
Jones,  Kent.  The  county  courts  continued  as  already 
constituted,  and  for  some  time  the  boards  of  justices, 
therein  assembled,  exercised  most  of  the  functions  of 
local  government,  such  as  the  assessment  of  taxes,  the 
erection  of  jails,  the  allotment  of  land  to  settlers  and 
the  abatement  of  public  nuisances.^  The  number  of 
justices  in  any  county  varied  from  time  to  time  with  the 
pressure  of  business,  the  willingness  or  ability  of  those 
chosen  to  perform  their  duties  or  the  favor  of  the  council. 
Sometimes  a  man  of  importance  was  commissioned  as 
justice  for  the  whole  province. 

Under  the  Duke  of  York's  laws  the  attendance  of  the 
justices  was  enforced  by  a  fine  of  ten  pounds  for  every 
day's  absence,  and  there  are  entries  of  such  fines  in  the 
records  of  the  courts.''     Under  the  Act  of  May  10,  1G85, 

*  Hazard's  Annals  of  Pennsylvania,  606,  quoting  Records 
of  Court  of  New  Castle,  Recorder's  Office,  B.  9,  407. 

*  Hazard's  Annals  of  Pennsylvania,  596. 

'  Charter  and  Laws  of  Pennsylvania,  2.'^3,  237;  Pennypacker's 
Colonial  Cases,  78,  92;    Sussex  Records  (Turner),  55,  83. 

*  Charter  and  Laws  of  Pennsylvania,  3,  176;  Upland  Court 
Records,  189. 


48      EARLY  COURTS  OF  PENNSYLVANIA. 

(ch.  170)  the  same  policy  was  continued,  but  the  fine 
reduced  to  thirty  shillings.  When  possible  the  justices 
were  assisted  by  the  presence  of  the  governor,  members 
of  the  council  or  judges  of  the  provincial  court,  after  its 
establishment,  all  of  whom  were  ex  officio  of  the  commis- 
sion of  the  peace.  In  the  minutes  of  the  court  of  Bucks 
County  it  is  noted  that  on  the  4th  and  Uth  day,  1  mo., 
1683,  the  governor,  William  Penn,  was  present  and  held 
an  orphans'  court.  The  county  courts  with  their  vague 
and  indefinite  jurisdiction  in  civil  and  criminal  causes 
and  county  affairs  would  seem  to  have  been  legarded 
with  favor  by  Penn,  who  was  averse  to  complicated 
procedure;  hence  at  the  first  assembly  held  at  Chester, 
December  7,  1082,  there  is  little  said  of  the  courts, 
although  in  the  "Great  Body  of  Laws"  then  adopted 
will  be  found  most  important  modifications  of  the 
common  law  both  as  to  persons  and  property.^ 

At  the  session,  in  March,  1083,  it  was  enacted  that  in 
every  precinct  three  persons  should  yearly  be  chosen 
as  common  peacemakers,  to  whom  differences  might  be 
submitted  for  arbitration  and  whose  findings  should  be 
as  conclusive  as  those  of  the  county  court.  In  the 
minutes  of  the  provincial  council,  7th,  9  mo.,  1683,  will 
be  found  a  case  "referred  to  the  peacemakers  and 
in  case  of  refusal  to  the  County  Court. "^  Voluntary 
arbitration  was  then  an  accepted  method  of  settling 
disputes  in  England,  particularly  in  cases  involving 
merchants'  accounts,  enforced  by  bond  conditioned  to 
submit  to  the  award,  and  arbitration,  by  rule  of  court. 


1  Lands  were  made  liable  for  debts  "except  where  there 
was  issue  and  then  one  half  of  the  land,"  the  principle  of  set-off 
was  accepted,  the  recording  of  deeds  regulated  and  a  mild 
criminal  code  adopted.  Charter  and  Laws  of  Pennsylvania 
109,   118. 

2  1  Colonial  Records,  34,  7,  9  mo.,  1683;  see,  also,  Sussex 
Records  (Turner)  97,  116,  for  the  election  of  peacemakers. 


EARLY  COURTS  OF  PEXXSYLVANIA.      49 

was  adopted  by  Statute  9  and  10  William  III,  ch.  15.  We 
have  also  seen  that  from  the  earliest  period  the  practice 
prevailed  in  New  York  and  its  dependencies.  The  office 
of  peacemaker,  however,  seems  to  have  survived  only 
until  1G92  when  the  assembly  decided  that  the  law  was 
not  in  practice.  Arbitration  was  long  a  popular  method 
of  trying  cases  and  beginning  with  the  Act  of  January  12, 
1705,^  a  law  for  reference  b}'  rule  of  court  in  the  spirit 
of  the  statute  of  William  III,  there  is  a  long  series  of 
acts  perfecting  this  method  of  disposing  of  litigation. 
The  early  dockets  of  the  supreme  and  common  pleas 
courts  are  full  of  rules  for  references  and  voluntary 
submissions. 

At  the  session  of  1683  it  was  enacted  that  the  first 
process  in  every  suit  should  be  the  exhibition  of  a  com- 
plaint fourteen  days  before  trial,  that  the  defendant 
should  be  summoned  te^i  days  before  trial  and  furnished 
with  a  copy  of  the  complaint,  which  was  required  to  be 
delivered  to  him  at  his  dwelling  house.  The  jurisdiction 
of  the  county  courts  was  also  more  clearly  defined. 

"That  all  actions  of  debt,  Accompt,  or  Slander,  and  all  actions 
of  Trespass,  shall  be  henceforth  first  tryed  by  there  respective 
County  Court,  where  the  Cause  of  action  did  arise. 

'  II  Statutes  at  Large,  242.  The  Society  of  Friends  had 
regulations  of  their  own  for  submitting  all  differences  between 
members  to  their  monthly  meetings.  See  the  publications 
of  the  Genealogical  Society  of  Pennsylvania,  Vol.  IV,  141. 
In  1707  James  Logan  writes  to  William  Penn:  "William  Rake- 
straw  has  had  me  before  the  meeting  for  not  granting  him  the 
lot  near  the  bridge,  after  Francis  Plumstead  had  applied  to 
thee  for  it,  and,  as  he  pretends  here,  got  a  grant  for  it;  but 
the  six  Friends  to  whom  it  was  referred,  declared  it  as  their 
sentiments,  upon  a  full  hearing,  that  William  has  no  manner 
of  claim  to  it,  either  in  law  or  equity,  but  that  he  has  had  full 
satisfaction,  and  shall  condemn  and  retract  his  abuse  against 
thee  especially,  of  which  shall  send  copies  when  pa.st  in  the 
meeting."  Memoirs  of  Historical  Society  of  Pennsylvania,  Vol.  X, 
258.  The  Statute  of  William  III  would  .seem  to  have  been  first 
suggested  by  John  Locke.  Board  of  Trade  Journal,  December 
18,  1696  (Mss.  Historical  Society  of  Pennsylvania,  Vol.  IX,  288). 


50      EARLY  COURTS  OF  PENNSYLVANIA. 

"And  if  any  person  shall  think  himself  aggrieved  with  the 
Judgement  of  the  County  Court,  That  then,  such  person  may 
Appeal  to  have  the  same  tryed  before  the  Governour  and  Council; 
Provided  always  that  the  same  be  above  twelve  lbs.  And  that 
the  person  appealing,  do  put  in  good,  and  sufficient  Security, 
to  pay  all  Costs  and  Damages,  if  hee  shall  be  cast,  as  also  to  pay 
the  Cost  and  Charges  of  the  first  Suit."' 

The  legislative  activity  of  Penn  and  the  assembly 
during  the  early  days  of  the  colonization  of  Pennsyl- 
vania was  such  as  to  render  it  difficult  to  follow  all  the 
changes  in  procedure.  No  colony  started  with  a  more 
complete  and  original  code,  but  much  was  necessarily 
experimental  and  was  gradually  modified  under  the 
influence  of  practical  experience.  The  change  in  the 
dynasty  and  the  political  vicissitudes  of  the  proprietor 
were  also  disturbing  elements  and  an  atmosphere  of 
uncertainty  surrounds  much  of  the  legislation  prior  to 
Penn's  second  visit  to  America.  In  1693,  when  Penn's 
government  was  suspended  and  Governor  Fletcher  of 
New  York  in  charge,  an  investigation  showed  the  rolls 
of  the  laws  in  confusion  and  not  passed  under  the  great 
seal.  There  was  no  certain  evidence  either  that  they 
had  been  transmitted  to  the  privy  council  for  approval, 
although  David  Lloyd  and  John  White  stated  that  they 
knew  that  Penn  had  delivered  some  at  least  of  the  laws 
to  the  king  in  council."     In  1694  some  of  the  laws  were 

'  Charter  and  Laws  of  Pennsylvania,  129. 

2  Minutes  of  Provincial  Council,  May  24,  1693,  1  Colonial 
Records,  379,  380.  Penn  under  date  of  25,  7  mo.  1689,  instructed 
Deputy  Governor  Blackwell  "to  collect  ye  Laws  that  are  in 
Being,  and  send  them  over  to  me  in  a  sticht  book,  by  ye  ffirst 
opportunity,  which  I  have  so  often  and  so  much  in  vaine  de- 
sired." I  Pennsylvania  Archives  (4th  Series),  106;  1  Colonial 
Records,  276,  2,  11  mo.  1689-90.  It  would  seem  that  Penn 
had  contemplated  periodic  revisions  of  the  whole  code,  1  Colonial 
Records,  42,  24,  1  mo.  1684;  151-2,  1,  2  mo.  1687;  letter  of 
Penn  to  Council,  Pennsylvania  Magazine  of  History,  Vol.  33, 
308;  Chapter  142  of  the  Acts  of  1683,  Charter  and  Laws  of 
Pennsylvania,  155. 


EARLY  COURTS  OF  PENNSYLVANIA.      51 

sent  over,  for  on  August  first  of  that  year  Penn  appeared 
before  the  committee  on  trade  and  plantations  and 
objected  to  the  act  about  recording  deeds.  On  the 
third  of  August  following  the  attorney-general  gave  his 
opinion  on  the  acts  and  the  committee  agreed  to  approve 
of  nineteen,  to  repeal  two  and  to  hold  five  until  the  gen- 
eral assembly  had  given  them  further  consideration. 
From  the  titles,  which  alone  are  given  in  the  journal  of 
the  board  of  trade,  the  acts  referred  to  are  apparently 
those  passed  in  1G93  under  Governor  Fletcher  and 
include  one  "about  appeals  to  the  Supream  Court. "^ 
On  December  31,  1697,  Penn  laid  some  more  laws  before 
the  commissioners  of  trade^  but  the  minutes  do  not 
state  what  they  were  or  what  action  was  taken  on  them. 
However,  this  much  is  certain,  that  in  their  more  general 
provisions  these  laws  were  recognized  and  to  some  extent 
observed,  but  the  unsettled  political  conditions,  brought 
about  partly  by  the  absence  of  the  proprietor  after 
1684  and  the  English  revolution  of  1688,  led  to  con- 
firmations, reenactments  and  repetitions  of  statutes  in 
varying  phraseology,  which  must  have  caused  confusion, 
particularly  as  the  laws  were  not  at  this  time  allowed 
to  be  printed,  manuscript  copies  being  filed  in  the 
county  courts  with  the  president  or  clerk. ^     Hence,  the 

*  Journal  of  the  Board  of  Trade  (Mss.  Historical  Society 
of  Pennsylvania,  Vol.  VII,  309),  August  3,  1694. 

In  1694  the  speaker  informed  the  house  that  the  laws  passed 
by  the  last  assembly,  and  transmitted  to  the  king  and  council, 
were  lodged  with  the  king's  attorney,  "who  expects  twenty 
guineas  for  perusing  them,  so  that  the  same  are  not  disallowed." 
I  Votes  of  Assembly,  82,  25,  3  mo.  1694. 

^Journal  of  the  Board  of  Trade,  December  31,  1697,  Vol.  X, 
386. 

*  I  Colonial  Records,  18,  23,  3  mo.  16S3.  The  jurisdiction 
of  the  courts  prior  to  1700  has  been  admirably  described  by 
the  late  Lawrence  Lewis,  Jr.,  Esq.,  in  a  paper  read  before  the 
Historical  Society  of  Pennsylvania  March  14,  1881,  and  re- 
printed in  I  Pennsylvania  Bar  Association  Reports,  353. 


52      EARLY  COURTS  OF  PENNSYLVANIA. 

text  of  acts  passed  before  1700  must  be  accepted  with 
considerable  reserve  and  it  is  difficult  to  determine 
just  how  far  the  more  experimental  features  were  en- 
forced. 

The  county  courts  were  vested  with  criminal  juris- 
diction in  all  except  such  important  crimes  as  treason, 
murder  and  manslaughter  and,  after  1693,  burglary,  rape 
and  arson.  At  times,  however,  a  special  commission  of 
oyer  and  terminer  was  issued  to  some  of  the  justices  to 
try  a  special  offender  or  to  clear  the  jail.  The  offenses 
for  which  indictments  were  most  frequently  found  and 
trials  had  were  for  drunkenness,  larceny,  profanity, 
assault  and  battery  and  breach  of  the  peace,  offenses 
against  morality,  "selling  rum  to  the  Indians,"  speaking 
disrespectfully  of  the  magistrates  and  breaking  the 
Sabbath.  In  the  lower  counties  there  are  occasional 
arrests  on  suspicion  of  piracy  and  smuggling.  The 
following  entry  in  the  Chester  County  court  records 
carries  a  faint  echo  from  Monmouth's  Rebellion: — 

"Ordered  that  the  sheriff  take  into  his  custody  the  body  of 
David  Lewis  upon  suspicion  of  treason,  as  also  the  body  of 
Robert  Cloud  for  concealing  the  same;  for  that  he  the  said 
Robert  Cloud  being  attested  before  this  court,  declared  that 
upon  the  3d  day  of  the  weeke  before  Christmas  last  at  the  house 
of  George  Foreham,  the  said  David  Lewis  did  declare  in  his 
hearing  that  he  was  accused  for  being  concerned  with  the  Duke 
of  Monmouth  in  the  West  Country."' 

On  the  civil  side  the  practice  at  this  period  did  not 
differ  materially  from  that  under  the  Duke  of  York, 
although  there  is  a  gradual  improvement  in  the  forms 
and  methods  of  procedure  and  in  the  use  of  legal  terms, 
as   the    courts    acquired    experience    or   became   better 

'  Chester  County  Records,  6th,  8  mo.  1685;  5  Hazard's  Penn- 
sylvania Register,  156.  The  case  of  Cock  v.  Rambo,  Penny- 
packer's  Colonial  Cases,  79,  is  an  illustration  of  the  practice 
in  a  criminal  case  from  the  binding  over  to  final  judgment. 


EARLY  COURTS  OF  PENNSYLVANIA.      53 

informed  as  to  their  duties  through  the  importation  of 
law  books  into  the  province.  Although  without  legal 
training,  the  justices  lived  in  a  time  when  a  knowledge 
of  the  rudiments  of  the  law  and  the  ordinary  forms  of 
conveyancing  were  essential  to  a  gentleman,  or  mer- 
chant of  importance,  and  a  copy  of  Dalton's  Justices 
with  the  acts  of  assembly  would  meet  most  of  the 
requirements  of  a  rustic  community.  Some  at  least  of 
the  justices  were  drawn  from  the  same  class  as  supplied 
the  quarter  sessions  in  the  rural  districts  of  England. 

A  difficulty  seems  to  have  confronted  them  in  prop- 
erly upholding  the  dignity  of  the  courts.  A  rule  of  the 
Philadelphia  County  court  for  1GS(3,  after  reciting  that 
many  disorders  had  been  committed  in  the  courts  of  this 
county,  partly  through  ignorance  and  partly  through 
negligence  of  otherwise  well-meaning  persons,  goes  on 
to  order — 

"That  plfs,  dfts,  and  all  other  psons  speake  directly  to  the 
point  in  question,  &  yt  they  put  in  their  pleas  in  writing  (this 
being  a  Court  of  record)  &  that  they  forbeare  reflections  & 
recriminations  either  on  the  Court,  Juries  or  on  one  another; 
under  penalty  of  a  fine."' 

Nor  were  the  judges  always  free  from  fault  them- 
selves. Justice  Luke  Watson  of  Sussex  County  was  in 
1684  twice  fined  by  his  colleagues  for  "smoakin  tobacco 
in  the  Court  house, "^  the  first  time  fifty  and  the  second 
time  one  hundred  pounds  of  tobacco,  an  instance  where 
the    punishment    certainly    fitted    the    crime.     Another 


'  Pennypacker's  Colonial  Cases,  99.  In  the  previous  year 
Thomas  Howell  was  fined  one  shilling  for  breach  of  a  rule. 
"Hee  saucilie  ansered  Let  the  Court  gett  it  how  they  can." 

^  Sussex  County  Records  (Turner),  109.  Watson  was 
expelled  from  the  provincial  council  in  1686,  I  Colonial  Records, 
129,  10,  3  mo.  1686,  but  rein.stated,  I  Colonial  Records,  177,  10, 
3  mo.   1688. 


54      EARLY  COURTS  OF  PENNSYLVANIA. 

justice  was  fined  five  shillings  for  swearing.^  In  the 
same  county  in  1G87  one  Thomas  Jones  refused  to  attend 
court  when  summoned  and  a  constable  and  two  justices 
were  sent  to  fetch  him,  whom  he  roundly  cursed.  The 
record  adds: — 

"The  said  Jones  being  brought  to  the  Court,  the  Court  told 
him  of  his  misdemeanor,  and  told  him  he  should  sufTer  for  it; 
he  told  the  Court  he  questioned  their  power,  soe  the  Court 
ordered  the  Sheriff  and  Constable  to  secure  him  and  they 
carryed  &  dragged  him  to  ye  smith  shop  where  they  put  irons 
upon  him,  but  he  quickly  got  the  Irons  off  and  escaped,  he 
having  before  wounded  several  persons'  legs  with  his  spurs 
that  strived  with  him,  and  when  they  was  goeing  to  put  him  in 
the  Stocks,  before  that  they  put  him  in  Irons,  he  kicked  the 
Sheriff  on  the  mouth  and  was  very  unruly  and  abusive,  and  soone 
got  out  of  the  Stocks."  ^ 

The  grand  jury  of  Philadelphia  County  in  1686  pre- 
sented Justice  James  Claypoole  "for  endeavoring  by  an 
indirect  way  to  preposess  Judge  Moore  in  a  case  yt  was 
to  be  tryed  before  him  in  the  provinciall  court,  being 
by  us  lookt  upon  to  be  of  a  dangerous  Consequence," 
and  "for  menacing  and  abusing  ye  jurors  in  ye  triall  of 
John  Moon  which  was  an  infringement  of  ye  rights  and 
properties   of  ye  people."^ 

In  the  trial  of  cases  the  procedure  was  characteristic- 
ally simple.  If  the  plaintiff  failed  to  serve  his  process 
he  was  nonsuited;  if  the  defendant  failed  to  appear 
judgment  was  entered  against  him.  If  both  parties 
were  present  the  defendant  was  called  on  for  his  answer, 
which  could  set  up  any  defense  legal  or  equitable  or 
claim  a  set-off.*     The  law  required  the  pleadings  to  be 

'  Sussex  Records  (Turner),  110.  He  could  have  cited  year- 
book precedents  in  his  favor. 

2  Sussex  County  Records  Mss.,  quoted  I  Pennsylvania  Bar 
Association   Reports,   361. 

3  Pennypacker's  Colonial  Cases,  116  (1686). 

*  See  Reynolds  v.  Simpson,  Pennypacker's  Colonial  Cases, 
77   (1685). 


EARLY  COURTS  OF  PENNSYLVANIA.      55 

short  and  in  English.  The  parties  would  sometimes 
leave  the  case  to  the  bench  without  a  jury/  particularly 
in  the  lower  counties,  but  if  a  jury  was  called,  it  con- 
sisted invariably  of  twelve  men.  After  verdict  judg- 
ment was  entered  and  the  practice  survived  for  some 
time  of  entering  judgments  in  kind — perhaps  reaching  a 
climax  in  an  entry  of  judgment  for  "one  thousand  of 
six-penny  nails,  and  three  bottles  of  rum."^ 

As  to  process  of  execution,  we  know  little  except 
that  the  proceedings  would  seem  rather  summary.  An 
order  of  council  was  made  in  1686  "yt  there  should  be 
tenn  days  Respite  between  judgm*  given  in  ye  County- 
Courts  within  this  Province  and  Territoryes  in  all  Civill 
Causes,  and  signing  the  execution  thereoff,  and  that  in 
the  Prov^^  Court  no  Execution  shall  be  served  until 
eight  days  after  judgm'^  given. "^  To  this  the  assembly 
in  1687  made  strenuous  objection  and  urged  that  the 
order  be  revoked,  whereupon  the  council  decided  to 
leave  the  matter  to  the  discretion  of  the  courts.*  There 
are  recorded  several  petitions  to  the  council  for  relief 
against  executions  on  judgments  entered  by  default, 
and  others  for  relief  against  vexatious  and  oppressive 
executions.  In  one  of  these  a  widow  complains  that 
judgment  having  been  obtained  against  the  estate  of 
her  deceased   husband,   the   sheriff   had  levied   on   the 


•  In  Proprietor  v.  Wilkins,  Pennypacker's  Colonial  Cases,  89 
(1685-6),  a  criminal  case  in  Philadelphia,  after  the  defendant 
had  elected  to  be  tried  "by  the  bench  of  justices  without  a  jury," 
Hersent,  the  attorney-general,  contended  that  it  was  contrary 
to  law  to  try  a  prisoner  without  a  petit  jury.  His  contention 
was  overruled,  but  the  prisoner  was  convicted  and  fined. 

2  Sussex  County  Records  Mss.,  quoted  I  Pennsylvania  Bar 
Association   Reports,  364. 

»  I  Colonial  Records,  122,  2,  2  mo.  1686. 

*  I  Colonial  Records,  157,  158,  11,  3  mo.  1687.  In  Philadelphia 
the  practice  was  for  the  justices  to  sign  the  order  for  an  execu- 
tion. Pennypacker's  Colonial  Cases,  108;  so,  also,  in  the 
provincial  court,  I  Colonial  Records,  95,  11,5  mo.  1685. 


56      EARLY  COURTS  OF  PENNSYLVANIA. 

plantation  where  she  and  her  children  dwelt,  although 
there  was  sufficient  property  elsewhere  to  satisfy  the 
debt.  The  council  sent  for  the  sheriff  and  told  him  that 
if  there  were  other  effects  of  the  decedent  he  ought  not 
to  levy  on  the  plantation  where  the  widow  and  children 
lived. ^  In  other  cases  relief  seems  to  have  been  given 
on  account  of  the  poverty  of  the  defendant,  a  practice 
that  would  pave  the  way  for  the  debtor's  exemption 
law.^ 

In  criminal  cases  the  sentences  were  usually  limited  to 
fines,  whippings  or  the  stocks.  Sentences  to  terms  of 
imprisonment  were  rare;  the  colony  could  ill  afford  to 
spare  the  labors  of  any  individual,  however  depraved, 
and  still  less  was  it  inclined  to  support  him  in  idleness. 
Penn's  incarceration  in  Newgate  had  familiarized  him 
with  the  evils  of  prison  life  and  he  expressly  ordained 
that  prisons  should  be  workhouses.^  Such  prisons  as 
were  built  at  this  time  were  neither  particularly  com- 
modious nor  strong.  In  1688  the  council  found  it  neces- 
sary to  reprimand  the  sheriff  of  Sussex  for  permitting 
a  dangerous  prisoner  to  be  at  large.  The  prisoner  mag- 
nanimously sent  word  to  the  council  that  he  would  yield 
himself  up  rather  than  "ye  sheriff  should  suffer."^  A 
similar  reprimand  was  administered  to  the  sheriflf  of 
Philadelphia  for  permitting  two  prisoners  suspected  of 
piracy  to  go  at  large,  to  which  the  sheriff  replied,  that 
they  never  went  without  his  leave  and  a  keeper,  "w'^'^ 
hee  thought  might  have  been  allowed  in  hott  weather."^ 


'  I  Colonial  Records,  124,  9,  2  mo.  1686. 

2  I  Colonial  Records,  125,  9,  2  mo.  1686,  also  pa^es  153,  156, 
161. 

^  Charter  and  Laws  of  Pennsylvania,  100. 

*  I  Colonial  Records,  199,  21,  12  mo.  1688-9. 

^  I  Colonial  Records,  531,  August  8,  1699.  Part  of  Patrick 
Robinson's  house  seems  to  have  been  used  as  a  prison.  Watson's 
Annals  of  Philadelphia  (1850),  Vol.  I,  356. 


EARLY  COURTS  OF  PENNSYLVANIA.      57 

By  the  Act  of  March  1,  1683/  the  justices  of  the 
county  courts  were  required  to  sit  twice  a  year  as  an 
orphans'  court.  The  name  as  well  as  the  original  pur- 
pose of  this  court  was  derived  from  the  court  main- 
tained by  the  corporation  of  London,  which,  by  imme- 
morial custom,  had  charge  of  the  estates  of  orphans  of 
freemen  of  the  city.  The  practice  and  jurisdiction  of 
the  court,  which  will  be  discussed  later,  differed  from 
that  of  its  prototype  but  was  not  distinctly  settled  at 
this  time,  and  we  find  the  provincial  council  taking 
cognizance  of  matters  that  subsequently  were  assigned 
to  this  tribunal  or  to  the  register's  court,  such  as  the 
appointment  of  administrators,  and  sale  of  land  for 
debts. 

Prior  to  1GS4  there  existed  in  the  province  no  tribunal 
having  cognizance  of  appeals  other  than  the  provincial 
council,  which,  in  some  degree,  supplied  the  place  of  the 
general  court  of  assizes  under  the  Duke  of  York's  Laws. 
As  the  colony  grew,  the  ever  increasing  number  of  appeals 
took  up  more  and  more  of  the  council's  time  and  made 
this  duty  exceedingly  burdensome,  not  to  speak  of  the 
inconvenience  to  the  suitors  in  traveling  to  Philadelphia 
with  their  witnesses  for  a  hearing  de  novo.  To  remedy 
this  inconvenience  the  Act  of  May  3,  1684^,  was  passed, 
which  provided  that  there  should  be  five  provincial 
judges,  appointed  by  the  governor,  any  three  of  whom 
should  form  the  provincial  court  and  sit  twice  a  year 
in  Philadelphia,  while  two  of  them  should  every  spring 
and  fall  go  on  circuit  into  every  county  and  there  hold 
court.  The  court  was  to  hear  and  determine  all  appeals 
from  inferior  courts  and  all  causes,  criminal  and  civil 
both  in  law  and  equity  not  determinable  in  the  county 
courts.     In  1(585  the  ntimber  of  judges  was  reduced  to 


'  Charter  and  Laws  of  Pennsylvania,  13L 
*  Charter  and  Laws  of  Pennsylvania,  168. 


58      EARLY  COURTS  OF  PENNSYLVANIA. 

three,  but  the  original  number  was  restored  by  the  Acts 
of  1690  and  1693.^  A  commission  was  accordingly  issued 
by  Penn  to  five  judges,  of  whom  Nicholas  Moore  was 
named  first,  the  commission  to  be  in  force  for  two 
years. ^  The  law  did  not  fix  any  definite  period  for  ser- 
vice and  the  commissions  were  drawn  for  various 
periods.  In  one  instg,nce  it  is  noted  in  the  minutes  of 
the  council  that  the  commission  is  to  continue  "only 
for  this  present  court. "^  Jealousies  quickly  arose  as  to 
the  geographical  apportionment  of  the  judges  and  in 
1687  the  assembly  requested  that  at  least  one  of  the 
judges  be  named  from  the  lower  counties.*  In  1690  the 
appointment  of  the  judges  caused  a  split  in  the  council, 
the  members  from  the  lower  counties  objecting  to  the 
naming  of  but  one  judge  from  the  territories  and  also 
demanding  that,  according  to  what  they  stated  was  the 
proprietor's  example,  two  commissions  issue,  one  for 
the  province  and  one  for  the  counties,  so  that  each  would 
have  a  chief  justice  from  its  own  district.  Unable  to 
prevail  on  their  colleagues,  the  members  from  the  lower 
counties  held  a  separate  meeting  and  drew  up  commis- 
sions to  suit  themselves.^  The  keeper  of  the  great  seal, 
however,  refused  to  seal  these  commissions  and  at  a 
regular  meeting  of  the  council,  subsequently  held,  the 
action  of  these  members  was  denounced  as  irregular 
and  annulled.  This  was  the  first  open  manifestation 
of  the  dissatisfaction  of  the  territories  with  the  union 
with  Pennsylvania,  which  continually  increased  until 
a  separate  government  was  obtained. 

The  provincial  court   did  not  at  once  command  or 
obtain  the  respect  and  influence  due  to  the  chief  judicial 

1  Charter  and  Laws  of  Pennsylvania,  178,  184,  225;    I  Colonial 
Records,  205,  26,  12  mo.  1688-9. 

2  I  Colonial  Records,  68,  12,  7  mo.  1684. 

3  I  Colonial  Records,  290,  10,  2  mo.  1690. 
*  I  Colonial  Records,  157,  11,  3  mo.  1687. 

I  Colonial  Records,  304,  21,  9  mo.  1690. 


EARLY  COURTS  OF  PENNSYLVANIA.      59 

tribunal  of  the  colony.  It  was  founded  in  the  most 
trying  times,  when  political  dissensions  among  the  lead- 
ing colonists  and  war  and  revolution  in  England  dis- 
tracted the  province.  The  terms  of  office  were  irregular, 
the  compensation  w^holly  inadequate  and  the  journeys 
on  circuit  tedious  and  even  dangerous.  It  is  not  to  be 
wondered  at  that  it  was  difficult  to  induce  properly 
qualified  men  to  accept  a  place  on  the  bench  and  that 
nominees  for  that  honor  sought  excuses  to  decline  the 
office.  No  traces  of  the  records  and  opinions  of  the  court 
at  this  time  have  come  down  to  us  and  they  cannot 
have  been  bulky,  for,  when  the  council  in  1688  sent  for 
the  records,  they  were  informed  by  the  clerk  that  "they 
were  not  recorded  otherwise  than  in  a  quire  of  paper. "^ 
The  duties  of  the  judges  did  not  at  first  compel  them  to 
grapple  with  legal  problems  with  a  view  to  the  value 
of  their  decisions  as  precedents.  The  correction  of 
errors  arising  on  issues  of  fact  and  the  trial  of  the 
more  serious  crimes  probably  made  up  the  bulk  of 
the  business.  As  time  went  on  the  court  strengthened 
its  position,  and  appeals  to  the  council  became  less  and 
less  frequent,  until  in  the  early  eighteenth  century  the 
two  bodies,  executive  and  judicial,  assumed  their  normal 
functions. 

It  is  sad  to  relate  that  Nicholas  Moore,  the  first  chief 
justice  of  the  provincial  court,  was  impeached  by  the 
assembly  within  a  year  after  the  creation  of  the  court. 
Moore  was  a  physician  as  well  as  president  of  the  Society 
of  Free  Traders  and  a  large  purchaser  of  land  from 
Penn.  Although  not  a  Friend  he  immediately  obtained 
a  position  of  influence,  was  elected  to  the  assembly  and 
was  speaker  in  1G84.  While  capable  and  energetic  he 
lacked  tact  and  discretion  and  assumed  an  arrogant 
tone  which  offended  his  fellow  members  of  the  assembly 

» I  Colonial  Records,  202,  25,  12  mo.  1688-9. 


60      EARLY  COURTS  OF  PENNSYLVANIA. 

and  gave  still  greater  offense  after  his  elevation  to  the 
bench.  In  the  minutes  of  the  assembly  there  are 
numerous  instances  of  his  interruptions  and  protests 
during  the  consideration  of  bills. ^  It  was  reported  to 
the  council,  during  the  session  of  1684,  that  the  speaker 
had  said:  "The  proposed  laws  were  cursed  laws"  and 
"hang  it  Damn  them  all."-  The  principal  complaints 
against  his  conduct  on  the  bench  seem  to  have  come 
from  the  lower  counties.  Ten  formidable  articles  of 
impeachment  were  presented,  among  which  were  the 
following : — 

"The  said  Nich.  Moore,  Judge,  having  that  high  Trust  Lodged 
in  him  for  the  Equall  Distribution  of  justice,  without  respect  of 
Persons,  the  .said  Judge  Sitting  in  Judgemt  at  New  Castle, 
hath  presumed  to  cast  out  a  person  from  being  of  a  Jury,  after 
ye  said  Person  was  Lawfully  attested  to  ye  True  Tryall 
of  ye  Cause,  thereby  rending  an  Innocent  &  Lawful  Person 
Infamous  in  the  face  of  the  County,  by  rejecting  his  attestation 
after  Lawfully  Taken,  and  Depriving  the  plantif  of  his  just 
Right. 

"The  said  Nich.  Moore,  Sitting  in  judgmt,  did  in  ye  towne  of 
New  Castle,  refuse  a  verdict  brought  in  by  a  LawfuU  Jury,  and 
by  Divers  threats  &  Menaces,  and  Threatening  ye  jury  with  ye 
same  of  Perjury  and  crim  of  their  Estates,  forced  ye  said  Jury 
to  goe  out  so  often — until  they  had  brought  a  Direct  Contrary 
verdict  to  the  first.  There,  by  preventing  justice,  and  wounding 
the  Libertyes  of  ye  free  people  of  this  Province  and  Territories 
in  the  Tenderest  point  of  their  Privelege,  and  violently  Usurping 
over  ye  Consciences  of  the  Jury. 

"The  said  Nich.  Moore  assuming  to  himselfe  an  Unlimited 
and  unlawful  Power,  did.  Sitting  in  Judgmt  at  ye  aforesaid 
Towne  of  New  Castle,  wherin  two  persons  stood  Charged  in  a 
Civil  action,  it  being  in  its  own  Nature  only  Trover  &  Convertion, 
and  ye  pretended  Indictmt  raised  it  no  higher,  notwithstanding 
the  said  Moore  did  give  the  judgmt  of  fellony,  Comending  the 
Defendant  to  be  PubUckly  Whipt,  &  Each  to  be  fined  to  pay 
three    fould,    thereby   Tyranizeing   over   the   persons.    Estates 


1  See  Votes  of  the  Assembly,  Vol.  I,  32. 
2 1  Colonial  Records,  55,  17,  3  mo.  1684. 


EARLY  COURTS  OF  PENNSYLVANIA.      61 

and  reputations  of  the  people  of  this  Province  and  Territories, 
Contrary  to  Law  and  Reason. 

"The  said  Nich.  Moore,  Sitting  in  judgmt  at  Chester,  did  in  a 
most  Ambitious,  Insulting,  &  Arbitrary  way,  reverse  and  Im- 
peach the  judgmt  of  ye  Justices  of  ye  said  County  Court,  and 
Publickly  affronting  the  members  thereof,  although  the  matter 
came  not  regularly  before  the  said  Circular  Court,  thereby  draw- 
ing the  Magistrates  into  the  Contempt  of  ye  people,  and  Weaken- 
ing their  hands  in  the  administration  of  justice."' 

A  committee  of  five  was  appointed  to  manage  the 
impeachment,  one  of  whom  was  Abraham  Mann,  whom 
we  have  previously  seen  engaged  in  the  prosecution  of 
Justice  Moll  before  the  court  of  assizes  in  New  York. 
The  council  showed  little  disposition  to  further  this 
impeachment  but  treated  the  accusers  with  due  civility 
and  fixed  a  time  for  the  hearing.  Moore,  however,  was 
by  no  means  inclined  to  submit  tamely  to  the  proceed- 
ings, and  in  the  house,  of  which  he  was  still  a  member, 
accused  Abraham  Mann  of  being  "a  person  of  seditious 
spirit,"  in  which  he  was  probably  right.  The  house, 
however,  expelled  Moore  and  proceeded  to  collect  evi- 
dence for  the  prosecution.  They  met  with  a  decided 
obstacle  in  the  conduct  of  Patrick  Robinson,  clerk  of 
the  court,  who  declined  to  produce  the  records  of  the 
court,  declaring  that  they  were  "written  in  Latin  where 
one  word  stood  for  a  sentence,  and  in  unintelligible  char- 
acters which  no  person  could  read  but  himself,  no,  not 
an  angel  from  Heaven."-  But  this  did  not  end  his 
offenses;  he  declared  the  articles  of  impeachment  were 
drawn  "hob  nob  at  a  venture"  and  threatened  to  "have 
at"  the  speaker  when  he  was  "out  of  the  chair."  The 
house  issued  a  warrant  for  Robinson's  arrest  and  requested 


'  I  Colonial  Records,  83,  15,  3  mo.  1685;  Votes  of  the  Assem- 
bly, Vol.  I,  35;   Charter  and  Laws  of  Pennsylvania,  499. 

*  Those  who  have  had  occasion  to  read  his  handwriting  will 
testify  to  the  truth  of  this  statement. 


62      EARLY  COURTS  OF  PENNSYLVANIA. 

the  council  to  remove  him  from  office.  From  the  hear- 
ing on  the  impeachment  Moore  contemptuously  absented 
himself,  but  the  evidence  was  thought  sufficiently  grave 
by  the  council  to  suspend  the  judge  from  his  official 
functions  until  the  matter  was  finally  decided.  The 
council  showed  every  disposition  to  treat  Moore  with 
leniency,  although  it  had  been  testified  that  he  had 
called  the  members  thereof  "fooles  and  Logerheads, 
and  said  it  were  well  if  all  the  Laws  had  drapt  and  that 
it  would  never  be  good  Times  as  Long  as  ye  Quakers 
had  the  administration."  Knowing  the  proprietor'^ 
predilection  for  Moore  the  house  addressed  a  letter  to 
Penn  on  the  subject,  a  quotation  from  the  last  para- 
graph of  which  shows  that  in  spite  of  their  quarrels  and 
jealousies  they  still  regarded  him  with  affection. 

"Dear  and  honored  Sir,  the  honor  of  God,  the  love  of  your 
person,  and  the  preservation  of  the  peace  and  welfare  of  the 
government,  were,  we  hope,  the  only  centre  to  which  all  our 
actions  did  tend,  and  although  the  wisdom  of  the  assembly 
thought  fit  to  humble  that  aspiring  and  corrupt  minister  of 
state,  Nicholas  Moore,  yet  to  you,  dear  sir,  and  to  the  happy 
success  of  your  afifairs  our  hearts  are  open,  and  our  hands  ready 
at  all  times  to  subscribe  ourselves,  in  the  name  of  ourselves  and 
all  the  freemen  we  represent,  Your  obedient  and  faithful  freemen. 

JOHN   WHITE,   Speaker."! 

By  one  excuse  after  another  the  council  prevented 
further  proceedings  in  the  impeachment  until  the  matter 
was  lost  sight  of  in  the  discussion  of  more  important  and 
perplexing  affairs  of  state  which  soon  required  atten- 
tion. 

The  provincial  council,  although  not  strictly  a  court, 
for  a  long  time  exercised  judicial  functions  and,  through 
the  fortunate  preservation  of  its  minutes,  is  by  far  the 
best    known    of   the    early   tribunals.     The   exercise   of 


!  Janney's  Life  of  Penn,  278. 


EARLY  COURTS  OF  PENNSYLVANIA.      63 

judicial  functions  by  the  governor  and  council  was 
strictly  in  accordance  with  the  custom  in  other  propri- 
etary z.rA  royal  provinces,  and  that  judicial  and  execu- 
tive functions  were  found  incompatible  in  Pennsylvania 
so  early  in  its  history  is  a  clear  indication  of  the  rapid 
gro-wi:h  of  a  democratic  and  progressive  spirit  in  that 
province. 

The  extraordinary  growth  of  the  colony,  the  long 
absences  of  the  proprietor  in  England  and  the  large 
measure  of  self-government  which  the  citizens  enjoyed, 
threw  upon  the  council  an  amount  of  execu- 
tive business  which  made  judicial  duties  particularly 
onerous,  and  numbers  of  petitions  and  appeals  were 
referred  back  to  the  courts.  Aside  from  their  judicial 
duties  the  governor  and  council,  as  an  executive  body, 
appointed  the  judges  and  magistrates,  regulated  com- 
merce, conducted  negotiations  with  the  Indians  and 
the  other  colonies,  subdivided  counties,  laid  out  towns, 
established  fairs  and  markets,  ordained  the  principal 
highways,  bridges  and  ferries,  and  exercised  a  general 
supervision  over  local  administration.  As  a  legislative 
body,  they  drew  up  all  the  laws,  prior  to  1G93,  when 
that  right  was  assumed  by  the  assembly,  being  finally 
transferred  to  that  body  by  the  Frame  of  Government  of 
1701.  By  that  instrument  also,  the  council,  no  doubt 
to  its  great  relief,  was  expressly  deprived  of  judicial 
functions. 

During  the  first  twenty  years  of  its  existence  the 
amount  of  judicial  business  transacted  in  the  council 
was  large;  prior  to  the  establishment  of  the  provincial 
court  it  was  the  only  general  tribunal  and  was  not  only 
a  court  for  hearing  appeals  but  also  a  court  of  first 
instance  for  such  suitors  as  could  obtain  a  hearing 
before  it.  This,  of  course,  was  natural  at  the  first 
settlement,  as  a  matter  of  practical  necessity.  We 
therefore  find  in  the  early  part  of  the  minutes,  trials  for 


64      EARLY  COURTS  OF  PENNSYLVANIA. 

petty  offenses  and  the  collection  of  small  debts.  They 
seem  to  have  been  obliged  even  to  discipline  their  own 
members,  for  at  the  fifth  meeting  of  the  council  one  of 
its  members  was  fined  five  shillings  "for  being  dis- 
ordered in  Drink. "^  The  council  seems  to  have  exer- 
cised its  good  offices  in  composing  differences.  In  1684 
there  is  the  following  entry: — 

"Andrew  Johnson  PI.  Hance  Peterson  Deft.  There  being  a 
difference  depending  between  them,  the  Govr.  &  Council  advised 
them  to  shake  hands  and  to  forgive  One  another.  And  Ordered 
that  they  should  Enter  in  bonds  for  fifty  pounds  apiece,  for 
their  good  abearance;  which  accordingly  they  did.  It  was  also 
Ordered  that  the  Records  of  Court  concerning  that  Business 
should  be  burnt. "^ 

There  are  other  cases  where  the  council  would  seem 
to  have  acted  more  as  a  final  board  of  arbitration  than 
as  judges  in  the  strict  sense. ^ 

Prior  to  the  establishment  of  the  provincial  court  in 
1684,  the  council  heard  all  appeals,  and  although  after 
that  time  such  appeals  were  discouraged,  they  never- 
theless continued  to  be  brought  before  the  council  for 
some  years.  Besides  regular  appeals,  there  were  numer- 
ous petitions  for  executive  clemency,  complaints  against 
severe  sentences  in  criminal  cases  and,  in  civil  cases, 
petitions  for  relief  against  judgments  entered  by  default 
and  against  executions  which  bore  too  severely  on  the 
debtor.  In  one  early  case,  on  appeal  from  the  county 
court  of  Philadelphia,  it  was  shown  to  the  council  that 
the  case  concerned  the  title  to  land  in  Bucks  County, 
when  the  law  required  cases  to  be  tried  where  the  cause 
of  action  arose.  The  council  remitted  the  case  to  the 
court  of  Bucks  County  and  fined  the  Philadelphia  court 
"forty  pounds  for  giving  judgment  against  law."* 


>  I  Colonial  Records,  4,  15,  1  mo.  1683. 

2  I  Colonial  Records,  52,  13,  3  mo.  1684. 

3  I  Colonial  Records,  65,  14,  6  mo.  1684. 
*  I  Colonial  Records,  20,  20,  4  mo.  1683. 


EARLY  COURTS  OF  PENx\SYLVANIA.  65 

As  an  illustration  of  the  practice  on  appeal  to  the 
council  the  case  of  Grantham  v.  Wollaston^  may  be 
cited : — 

One  Wollaston  purchased  a  negro  from  Grantham 
and  gave  a  bond  for  £2Q,  15  s.  in  payment.  Judgment 
was  entered  on  this  bond  by  the  New  Castle  County 
court,  execution  issued  and  a  portion  of  the  defendant's 
land  sold  by  the  sheriff  to  Grantham  for  ;^30,  10  s.  and 
the  latter  was  put  in  possession.  Wollastcn  on  the  18th, 
3  mo.,  1687,  petitioned  to  the  council  at  Philadelphia 
averring  that  the  county  court  had  denied  him  an 
appeal  to  have  his  case  heard  in  equity.  After  reading 
a  copy  of  the  proceedings  the  council  directed  the 
secretary  to  take  security  for  the  prosecution  of  the 
appeal  at  the  next  provincial  court  and  ordered  the 
county  court  to  stop  all  proceedings.  The  provincial 
court  on  the  10th,  2  mo.,  1688,  made  an  order  restoring 
Wollaston  to  possession,  which,  it  was  explained  later 
by  one  of  the  judges,  was  not  intended  to  be  executed 
"until  the  debt  and  damages  were  satisfied."  On 
the  7th,  12  mo.,  1688-9,  Wollaston  again  petitioned  the 
council,  complaining  of  a  forcible  entry  and  detainder, 
whereupon  it  was  resolved  that  a  warrant  be  drawn, 
directed  to  the  justices  of  the  peace  dwelling  "nearest 
to  ye  place  where  ye  fforce  is  alleaged,"to  make  a  view 
and,  if  they  found  no  force,  to  require  the  sheriff  to 
summon  a  jury  to  inquire  into  the  facts  and  thereupon 
to  imprison  the  offender  and  restore  quiet  possession 
to  the  petitioner.  On  March  4,  1688-9,  the  clerk  of  the 
county  court  returned  to  the  council  the  finding  of  the 
jury,  which  was  in  effect  that  Grantham  had  been  the 
victim  of  the  forcible  entry.  "This  was  judged  by  ye 
board  to  be  a  great  affront  and  contempt  of  their  author- 


1  I  Colonial  Records,  101,  18,  3  mo.   1687,  and  see  pages  172, 
193,  210,  215-18. 


66  EARLY  COURTS  OF  PENNSYLVANIA. 

ity."  Grantham's  wife  then  petitioned  the  council 
setting  forth  her  husband's  side  of  the  case,  and  the 
assembly  also  remonstrated  against  the  action  of  the 
provincial  court  and  requested  the  council  to  rehear 
the  whole  matter  "as  the  supreame  judges  of  this  gov- 
ernment." Governor  Blackwell  and  the  council,  accord- 
ingly, proceeded  to  New  Castle  where,  on  March  13  and 
14,  1689,  the  facts  were  again  reviewed.  Both  parties 
were  called  in  and  "endeavors  used  with  both  of  them 
to  agree  the  matter  between  themselves,"  but  in  vain. 
Wollaston  declared  he  had  better  be  without  the  land 
than  pay  ;^30,  10  s.  for  it,  and  on  the  other  hand  Gran- 
tham refused  to  take  back  the  negro,  contending  justly 
that  the  defendant  had  had  several  years'  use  of  his 
purchase  while  the  plaintiff  had  been  out  his  money. 
The  council  thereupon  resolved  and  ordered  that  the 
sheriff's  sale  to  Grantham  should  be  confirmed  and  that 
he  should  be  restored  to  possession,  that  this  should  be 
in  full  of  all  demands  against  Wollaston,  debt,  damages 
and  charges,  and  "that  this  be  the  finall  conclusion  & 
judgement  of  this  board  in  that  case." 

It  has  been  observed  that  the  judicial  powers 
exercised  by  the  council  resembled  those  wielded  by 
the  court  of  star  chamber  in  its  purest  and  best  days,^ 
but  however  beneficial  such  control  was  in  correcting 
the  errors  of  an  amateur  judiciary,  it  was  contrary  to 
the  constitutional  principles  then  uppermost  in  English 
minds  after  a  century-long  struggle  with  absolutism. 
Accordingly,  when  the  revision  of  the  Frame  of  Govern- 
ment was  under  consideration  in  1701,  the  assembly 
petitioned  that  no  person  should  be  answerable  before 
the  governor  and  council  or  in  any  place  but  an  ordinary 
court  of  justice.-     Penn  replied  that  he  knew  of  no  per- 


1  McCall's  address  before  the  Law  Academy  (1838);    I  Penn- 
sylvania Bar  Association  Reports,  386. 

2  II  Colonial  Records,  34,  20,  7  mo.  1701. 


EARLY  COURTS  OF  PENNSYLVANIA.      67 

son  obliged  so  to  answer/  but  he  inserted  the  following 
clause  in  the  new  charter: — 

"That  no  person  or  persons  shall  or  may,  at  any  time  hereafter, 
be  obliged  to  answer  any  complaint,  matter  or  thing  whatsoever 
Relateing  to  Property  before  the  Govern^  and  Council,  or  in  any 
other  place  but  in  the  ordinary  Courts  of  Justice,  Unless  appeals 
thereunto  shall  be  hereafter  by  Law  appointed."^ 

The  council  was  also  the  only  court  for  the  trial  of 
serious  crimes  until  1685,  when  that  jurisdiction  was 
conferred  on  the  provincial  cotirt.  Important  cases  of 
this  kind  were  those  of  the  Proprietor  against  Pickering 
for  counterfeiting^  and  against  Margaret  Mattson*  for 
witchcraft.  The  latter  case  is  peculiarly  interesting  as 
illustrating  the  superstition  of  the  times  and  in  its 
outcome  was  most  creditable  to  the  common  sense  of 
Penn  and  the  jury.  The  accusation  against  the  woman 
was  that  she  had  bewitched  the  witness's  cattle,  but  the 
evidence  was  mostly  hearsay,  as  the  defendant  herself 
cleverly  pointed  out.  The  verdict  of  the  jury  was: 
"Guilty  of  haveing  the  Comon  fame  of  a  "Witch,  but  not 
Guilty  in  manner  and  forme  as  Shee  Stands  Indicted." 
The  defendant  was  permitted  to  go,  on  entering  bond 
for  good  behavior.  The  fear  of  witchcraft  did  not  dis- 
appear for  some  time  in  Pennsylvania.  In  1095,  the 
grand  jury  of  Chester  County  presented  "Robert  Roman 
of  Chichester  for  practising  Geomacy  according  to  Hidon 
and  Divining  by  a  Stick."  The  accused  submitted  to 
the  court,  was  fined  five  pounds  and  ordered  "never 
to  practice  the  arts"  but  behave  himself  well,  which  he 
promised.     His  books,   "Hidon's  Temple  of  Wisdom," 

•  II  Colonial  Records,  38,  29,  7  mo.  170L 
2  II  Colonial  Records,  56,  28,  8  mo.  1701. 

'  Pennypacker's  Colonial  Cases,  32;  I  Colonial  Records,  29, 
24,  8  mo.  1683,  and  page  32. 

*  Pennypacker's  Colonial  Cases,  35;  I  Colonial  Records,  40, 
27,   12  mo.   1683. 


68      EARLY  COURTS  OF  PENNSYLVANIA. 

"Scot's  Discovery  of  Witchcraft,"  and  "Cornelius 
Agrippa's  Necromancy,"  were  ordered  to  be  brought 
into  court. ^  Another  accusation  of  witchcraft  was 
brought  to  the  attention  of  the  council  in  1701  but 
dismissed  as  trifling. 

The  jurisdiction  of  the  council  in  admiralty  matters 
was  a  source  of  much  trouble  to  them.^  There  are 
numerous  cases  in  the  minutes  relating  to  seamen's 
wages,  pilots'  fees,  violations  of  the  navigation  laws  and 
complaints  against  masters  for  ill  treatment  of  pas- 
sengers. An  example  of  the  last  is  the  case  of  March  v. 
Kilner^  where  the  master  of  the  ship  was  charged  with 
beating  the  passengers  and  permitting  the  crew  to  drink 
their  beer.  Kilner  denied  everything,  "only  ye  kicking 
of  the  maid."  He  was  reprimanded  and  advised  to 
"make  up  the  business  w'''^  accordingly  he  did."  The 
proprietor  was,  by  his  charter,  personally  charged  with 
the  duty  of  seeing  to  the  enforcement  of  the  English 
navigation  acts  and  that  fines  and  duties  were  imposed 
and  collected  according  to  that  complicated  and,  as  the 
colonists  thought,  burdensome  system.  The  responsi- 
bility for  the  execution  of  these  laws  rested  upon  the 
council  and  many  were  the  complaints  to  the  home 
government  of  their  indifference  and  laxity  in  these 
matters.  Indeed  Penn  was  obliged  to  write  to  them  in 
1697  urging  the  enforcement  of  the  laws  and  stating 
that  it  had  been  reported  to  him  "that  you  doe  not  onlie 
wink  att  but  Imbrace  pirats,  shipps  and  men."*     The 


1  Hazard's  Pennsylvania  Register,  Vol.  V,  159.  In  Sussex 
County  Edward  Southrin  was  accused  of  having  conversed 
with  the  devil.     Sussex  County  Records  (Turner),  36. 

2  I  Colonial  Records,  8,  21,  1  mo.  1683,  and  pages  35,  69. 

3  Pennypacker's  Colonial  Cases,  29;  I  Colonial  Records,  23, 
7,  7  mo.  1683. 

^  I  Colonial  Records,  494,  9  February,  1697-8;  Board  of  Trade 
Journals,  Mss.  Historical  Society  Pennsylvania,  Vol.  X,  268, 
287,  333. 


EARLY  COURTS  OF  PENNSYLVANIA.      09 

council  indignantly  denied  this  accusation  and  reported : — 

"Wee  know  of  none  that  has  been  entertained  here,  unless 
Chinton  &  Lassell,  with  some  others  of  Avery's  Crew,  that 
happened  for  a  smal  time  to  sojourn  in  this  place,  as  they  did 
in  some  of  the  neighboring  governments;  but  as  soon  as  the 
magistrats  in  Philadelphia  had  received  but  a  Copie  of  the 
Lords  Justice's  proclamation,  gott  all  that  were  here  appre- 
hended, &  would  have  taken  the  Care  &  Charge  of  securing  y™, 
untill  a  Legall  Court  had  been  erected  for  their  trial,  or  an 
opportunity  had  presented  to  send  y^i  to  England;  but  before 
that  Could  be  effected,  they  broke  goale  &  made  their  escape 
to  New  York,  where  Hues  &  Crys  wer  sent  after  yni."i 

Nevertheless  the  records  of  the  time  are  full  of  refer- 
ences to  piracy,  and  Pennsylvania  was  reported  to  have 
"become  ye  greatest  refuge  &  Shelter  for  pirats  &  Rogues 
in  America."  Undoubtedly  the  "pirats  and  rogues" 
took  advantage  of  the  mild  temper  and  humanity  of 
the  Quaker  justices.  In  1698  the  town  of  Lewes  was 
plundered,  a  woeful  account  of  which  is  contained  in  a 
letter  from  the  local  justices  to  Lieutenant-Governor 
Markham,  and  in  1700  it  was  reported  to  Penn  that  the 
great  Captain  Kidd  was  lying  off  Cape  Henlopen  and 
trading  with  some  of  the  inhabitants. - 

To  deal  with  such  matters,  a  court  of  vice  admiralty 
was  established,  by  the  Crown,  for  Pennsylvania  and  the 
territories  in  1697,  of  which  Colonel  Robert  Quarry  was 
appointed  judge.  Quarry  was  a  former  governor  of 
South  Carolina,  a  vain  and  quarrelsome  person  who 
disliked  the  Friends  and  was  bitterly  opposed  to  the 

>  I  Colonial  Records,  495,  10  February,  1697-8. 

»  I  Colonial  Records,  532,  August  9,  1699  and  see  page  549; 
Sussex  Records  (Turner),  42.  August  17,  1696,  Mr.  Randolph 
delivered  to  the  Commissioners  of  Trade  a  paper  relating  to  the 
ill  execution  of  the  Acts  of  Parliament  and  a  list  of  names  of 
Pirates  and  Scotchmen  inhabiting  and  trading  in  Pennsylvania; 
Memoirs  of  Historical  Society  of  Pennsylvania,  Vol.  IV,  part  2, 
260. 


70      EARLY  COURTS  OF  PENNSYLVANIA. 

proprietary  system  of  government.  Almost  immediately 
after  his  appointment  his  court  came  into  conflict  with 
the  county  court  of  Philadelphia.  Certain  goods  having 
been  seized  by  the  collector  of  customs  under  a  warrant 
issued  by  Colonel  Quarry,  a  judge  of  the  county  court 
at  the  instance  of  David  Lloyd,  a  lawyer  and  member 
of  the  council,  granted  a  writ  of  replevin  under  which 
they  were  taken  from  the  collector.  Quarry  was  exceed- 
ingly indignant  at  this  and  complained  both  to  the 
home  government  and  to  the  governor  and  council,  who 
made  such  apologies  as  they  could,  handed  over  the 
replevin  bond  to  him,  and  reprimanded  the  judge,  who 
tendered  his  resignation.^  David  Lloyd,  however,  was 
as  obstinate  and  hot-headed  as  Quarry  himself.  At 
the  succeeding  county  court  he  brought  an  action  against 
the  marshal  for  the  detaining  of  the  goods.  In  the 
words  of  Quarry — 

"Ye  marshall  being  called  to  defend  the  sute,  hee  produced 
in  his  owne  Justificaon  His  maties  Lres  pats,  undr  ye  broad 
seal  of  ye  High  Court  of  Admiraltie,  with  the  Judges  warrt  for 
ye  seizure  aforesaid,  which  sd  patent  having  in  the  frontis  piece 
his  most  sacred  maties  effigies  stampt,  with  the  sd  seal  adpend- 
ant,  the  sd  David  Lloyd,  in  a  most  insolent  &  disloyal  manner, 
taking  the  sd  Commission  in  his  hand  &  exposing  it  to  ye  people, 
did  utter  &  pubHsh  these  scurilous  &  reflecting  words  following, 
viz: — what  is  this?  do  you  think  to  scare  us  wt  a  great  box 
(meaning  ye  seal  in  a  tin  box)  and  a  little  Babie;  (meaning  ye 
picture  or  effigies  aforesaid);  'tis  true,  said  hee,  fine  pictures 
please  children;  but  wee  are  not  to  be  frightened  att  such  a  rate; 
&  many  more  gross  &  reflecting  expressions  on  his  matie  to 
ye  like  effect."^ 

For  this  and  other  insults  to  the  court  of  admiralty, 
Penn,  by  order  of  the  board  of  trade,  suspended  Lloyd 
from   the   council   and   dismissed   him   from   ah    public 


1  I  Colonial  Records,  535,  December  21,  1699,  and  see  page  545. 
2 1  Colonial  Records,  576,  May  14,  1700. 


EARLY  COURTS  OF  PEXXSYLVANIA.      71 

employment  and  he  from  that  time  became  a  bitter 
opponent  of  the  proprietor.  ^  Nevertheless  in  spite  of 
stringent  laws  and  a  more  systematic  patrol  of  the 
coast  by  cruisers  it  was  long  before  pirates  ceased  to 
be  a  menace  to  commerce.  In  1712  Logan  wrote,  "We 
have  been  extremel}^  pestered  with  pirates  who  now 
swarm  in  America  and  increase  their  numbers  with 
every  vessel  they  take."^  In  17 IS  Governor  Keith  in 
calling  the  council's  attention  to  the  losses  sustained 
by  the  colony  through  piracy,  said  that  he  was  informed 
that  Teach  had  been  lurking  for  some  days  in  and  about 
Philadelphia  and  that  he  suspected  that  many  of  the 
pirates  who  had  surrendered  under  an  offer  of  pardon 
still  kept  up  a  correspondence  with  their  companions 
abroad.  The  Teach  referred  to  was  the  notorious  pirate 
"Blackbeard"  who  was  shortly  after  killed  in  an  en- 
counter -with  a  vessel  fitted  out  by  Virginia  for  his 
capture.^ 

It  must  not  be  supposed  that  either  the  provincial 
court  or  the  council,  in  its  judicial  capacity,  was  a  court 
of  last  resort.  Under  the  charter  the  right  was  reserved 
to  the  king  to  hear  and  determine  appeals  from  all 
judgments  given  in  the  province,  and  until  the  Revo- 
lution there  was  no  court  of  last  resort  in  Pennsylvania. 
A  reference  to  this  subject  is  contained  in  the  commis- 
sion of  William  and  Mary  to  Governor  Fletcher  wherein 
it  is  provided  that  if  either  party  to  a  civil  cause  is  dis- 
satisfied with  the  judgment  of  the  superior  court  of  the 

'  Memoirs  Historical  Society  of  Pennsylvania,  Vol.  IV,  part  2, 
301. 

2  Watson's  Annals  of  Philadelphia  (1850),  Vol.  II,  218;  III 
Colonial  Records,  43,  August  11,  1718. 

3  Blackbeard's  head  was  struck  off  and  brought  back  in 
triumph  on  the  end  of  the  bowsprit.  Afterwards  his  skull 
was  made  into  the  bottom  of  a  very  large  punch  bowl  long  used 
at  the  Raleigh  Tavern  at  Williamsburg,  Va.;  Watson's  Annals 
of  Philadelphia   (1850),  Vol.  II,  221. 


72      EARLY  COURTS  OF  PENNSYLVANIA. 

province  "they  may  then  appeale  unto  us  in  Our  privy 
Council,  provided  the  matter  in  difference  exceed  the 
real  value  and  Sum  of  three  hundred  pounds  Sterling."^ 
The  Act  of  October  28,  1701,^  contained  provisions  for 
appeals  to  England  but  no  limit  of  money  value  was 
fixed.  While  the  right  to  such  appeals  to  England  was, 
in  this  colony,  unquestioned,  the  difficulty  and  expense 
of  prosecuting  them  was  such  as  to  render  them  infre- 
quent. In  1685  an  appeal  to  England  was  allowed  by 
the  provincial  court  upon  entry  of  security,  but  from 
the  discussion  in  the  council  it  would  seem  that  the 
appellant  failed  to  enter  security  as  required.^ 

In  December,  1G99,  Penn  returned  to  America  and 
began  the  work  of  reconstructing  the  government  of 
the  province,  which  had  been  restored  to  him  on  the 
express  condition  that  he  would  put  an  end  to  the  exist- 
ing state  of  confusion.*  The  political  and  constitu- 
tional history  of  provincial  Pennsylvania  has  been  ably 
and  thoroughly  treated  elsewhere^  and  it  is  not  our 
purpose  to  refer  to  it  except  as  it  affected  the  courts. 
Suffice  it  to  say  that  the  period  of  Utopian  and  paternal 
experiments  had  closed  and  that  thereafter  the  pro- 
prietor and  his  successors  were  engaged  in  a  struggle 
to  maintain  a  difficult  position  between  two  fires;  on 
the  one  side  a  democracy,  selfish,  narrow  and  indi- 
vidualistic, and  on  the  other  a  home  government,  critical 
and  contemptuous,  that  regarded  the  colony  as  little 
more  than  a  nest  of  republicans  and  smugglers.  Penn. 
found  the  assembly  determined  to  strengthen  its  posi- 
tion and  after  much  fruitless  discussion,  granted  a  charter 


1  I  Colonial  Records,  313,  21,  9  mo.  1C90. 

2  II  Statutes  at  Large,  148,  §  5. 

3  I  Colonial  Records,  95,  11,5  mo.  1685,  and  see  page  98. 

*  Board   of  Trade   Journals,   July   13,    1694;     Mss.   Historical 
Society  of  Pennsylvania,  Vol.  VII,  300. 

*  Shepherd's    Proprietary    Government  in  Pennsylvania    (Co- 
lumbia  University  Studies  in  History,   1896). 


EARLY  COURTS  OF  PENNSYLVANIA.      73 

conferring  very  extended  powers  on  the  legislative  body 
and  containing  little  else  of  constitutional  importance.^ 
Nothing  was  said  of  the  judges.  The  provincial  court 
was  then  an  insignificant  factor  in  the  political  life  of 
the  province  and  the  organization  of  the  courts  was  left 
to  be  regulated  by  an  act  of  assembly,  which  will  be 
referred  to  presently. 

With  the  adoption  of  the  charter  of  privileges  of  1701, 
the  government  of  the  province  assumed  a  form  that  it 
was  to  retain  until  the  Revolution.  The  power  of  pro- 
posing and  enacting  laws  passed  to  the  assembly  and 
the  council  ceased  to  exercise  judicial  powers.  More 
important  still,  the  council  ceased  to  be  an  elected  body 
and  was  thereafter  appointed  by  the  proprietor  or  in 
his  absence  by  his  lieutenant-governor.  The  effect  of 
this  was  to  throw  into  the  assembly  the  abler  spirits  of 
the  opposition  and  greatly  strengthen  that  body,  while 
the  council,  chosen  from  among  the  friends  of  the 
governor  or  proprietor,  was  thereafter  regarded  as  repre- 
senting the  proprietary  interests  rather  than  those  of 
the  populace. 

One  humble  court  has  not  been  referred  to,  that  of 
the  coroner.  The  following  is  a  specimen  of  a  verdict 
taken  in  1699  in  Chester  County: — 

"We  whose  names  are  underwritten,  summoned  and  attested 
by  the  Coroner  to  view  the  body  of  Sarah  Baker,  haveing  made 
strict  enquiry,  and  alsoe  had  what  evidence  could  be  found, 
attested  to  what  they  know,  and  wee  can  find  noe  other  but  that 
it  pleased  Almighty  God  to  visit  her  with  death  by  the  force  of 
Thunder;    and  to  this  we  all  unanimously  agree."- 

Who  wall  say  that  this  is  not  quite  equal  in  intelli- 
gence to  the  verdict  of  the  average  coroner's  jury  at  the 
present  time? 

»  II  Colonial  Records,  54,  28,  8  mo.  1701;  Proceedings  of  the 
Constitutional  Conventions  of  Pennsylvania  of  177Gand  1790,  31. 

^  Chester  County  Records, G,  5  mo.  1699,  reprinted  in  Hazard's 
Pennsylvania  Register,  Vol.  V,   150. 


CHAPTER  II. 

In  1701  William  Penn  was  called  back  to  England  to 
defend  his  proprietorship.  Before  his  departure  a  gen- 
eral revision  of  the  earlier  legislation  was  undertaken  at 
the  sessions  of  the  assembly  held  at  New  Castle  in  1700 
and  at  Philadelphia  in  1701.  The  acts  there  passed, 
one  hundred  and  fourteen  in  number,  seem,  in  a  sense, 
to  have  been  regarded  as  supplying  the  previous  legis- 
lation and  were  passed  with  the  expectation  of  being 
presented  to  the  privy  council  for  approval,  as  required 
by  the  charter.  In  fact,  when  the  board  of  trade  in- 
quired of  Penn,  on  his  return,  as  to  whether  the  laws 
received  from  him  were  a  complete  body  of  all  the  laws 
of  the  province,  he  replied  that  he  believed  they  were 
the  present  body  of  laws,^  and  it  will  be  noticed  that  the 
compilations  of  the  eighteenth  century  begin  with  the 
Acts  of  1700. 

Among  these  acts  was  one  of  October  28,  1701, 
entitled  "An  Act  for  Establishing  Courts  of  Judicature 
in  this  Province  and  Counties  Annexed."^  Its  origin 
was  as  follows:  Edward  Shippen,  for  the  two  previous 
years  chief  justice  of  the  provincial  court,  and  John 
Guest,  the  then  chief  justice,  both  members  of  the 
council,  brought  into  the  assembly  on  October  7th,  a 
bill  for  establishing  the  courts,  which  was  "unanimously 
rejected."  Some  few  days  after,  David  Lloyd,  who 
was  not  then  a  member  of  either  council  or  house,  pro- 
posed a  bill  which  was  voted  to  be  adopted  with  amend- 
ments, and  Richard  Hallowell  and  Isaac  Norris  were 
appointed  a  committee  to  draw  up  the  bill,  with  the 
amendments.     The  bill  met  with  no  apparent  opposi- 


1  II  Statutes  at  Large,  461. 

2  II  Statutes  at  Large,  148;  Charter  and  Laws  of  Pennsylvania, 
311. 


EARLY  COURTS  OF  PENXSYLVAXIA.       75 

tion  in  the  council.  Without  repeating  its  provisions  in 
full,  which  would  be  tedious,  it  may  be  said  by  wa}^  of 
summary  that  the  act  provided  for  the  holding  of  the 
"County  Courts  or  Sessions"  at  stated  periods,  three 
justices  to  constitute  a  quorum,  with  jurisdiction  in 
civil  and  criminal  n:atters,  capital  cases  excepted.  These 
courts  were  required  to  observe  as  nearly  as  possible 
"respecting  the  infancy  of  this  Government  and  capaci- 
ties of  the  people,  the  methods  and  practice  of  the  King's 
court  of  common  pleas  in  England;  having  regard  to  the 
regular  process  and  proceedings  of  the  former  county 
courts;  always  keeping  to  brevity,  plainness  and  verity 
in  all  declarations  and  pleas,  and  avoiding  all  fictions 
and  color  in  pleadings."  Maritime  affairs,  not  cogniz- 
able in  the  admiralty  courts,  were  to  be  tried  in  a  special 
manner  before  a  jury  of  "merchants,  masters  of  vessels 
or  ship  carpenters."  The  county  courts  also  received 
equity  powers,  with  the  right  of  appeal  to  the  provincial 
court  from  any  decree  or  sentence  made  or  given  by  the 
justices.  The  provincial  court  was  to  consist  of  five 
judges,  appointed  by  the  governor,  three  of  whom  were 
required  to  sit  twice  a  year  in  Philadelphia,  and  two, 
at  least,  to  go  on  circuit  through  the  counties  to  try 
capital  cases  and  serious  crimes  and  hear  appeals  from 
the  county  courts.  The  governor,  however,  was  to 
grant  writs  of  error  and  writs  of  habeas  corpus.  The 
powers  and  duties  of  the  orphans'  courts  were  also 
defined  and  the  forms  of  certain  writs  prescribed;  all 
former  laws  relating  to  the  courts  wxre  repealed. 

There  is  little  doubt  that  David  Lloyd  was  the  original 
draftsman  of  the  bill  and  while  the  act,  as  finally  adopted, 
contained  in  its  main  outline  features  afterwards  recog- 
nized by  the  colonists  as  most  convenient  for  Pennsyl- 
vania, it  was,  like  other  acts  attributed  to  Lloyd,  ver- 
bose, involved  and  overloaded  with  minor  details  of 
practice.  Lloyd,  no  doubt,  thought  that  he  was  faith- 
fully adhering  to  the  simplicity  that   had  marked  the 


7G      EARLY  COURTS  OF  PENNSYLVANIA. 

legal  procedure  in  the  province  from  the  beginning,  but 
he  was  a  lawyer,  and,  like  most  of  his  brethren,  could 
not  divest  himself  of  his  professional  circumlocution  or 
exclude  from  his  plan  pet  theories  of  his  own.  In  the 
form  adopted  the  act  did  not  prove  acceptable  to  the 
advisers  of  the  Crown. 

Penn  himself  seems,  on  second  thought,  to  have  found 
some  objectionable  features  in  the  act  and  desired  that 
it  might  not  be  confirmed  but  sent  back  to  be  amended. 
The  lords  commissioners  for  trade  and  plantations 
reported  that  the  act,  "so  far  from  expediting  the 
determination  of  lawsuits,"  would,  as  they  conceived, 
"impede  the  same,"  and,  accordingly,  the  act  was 
formally  disallowed  and  repealed  on  February  7,  1705, 
by  the  queen  in  council.^  One  of  the  objections  that 
occurred  to  the  minds  of  the  English  lawyers  was  to  that 
clause  which  directed  the  courts  to  avoid  all  "fictions 
and  color  in  pleadings."  A  doubt  was  entertained  as 
to  whether  this  might  not  preclude  an  action  of  eject- 
ment. In  this  they  were  not  far  from  the  real  purpose 
of  the  draftsman  of  the  act,  as  would  appear  from  a 
debate  in  the  provincial  council  in  December,  1704, 
upon  a  petition  by  Thomas  Revel,  the  plaintiff  in  an 
ejectment,  who  complained  that  his  case  had  been 
put  off  for  nearly  three  years.  John  Moore,  counsel  for 
the  plaintiff,  and  David  Lloyd,  for  the  defendant,  being 
summoned  before  the  council,  Lloyd  boldly  argued  that 
that  method  of  trial  being  fictitious,  was  repugnant  to 
the  law  of  the  province.^     Lloyd,  however,  was  clever 


1  II  Statutes  at  Large,  456,  482. 

*  II  Colonial  Records,  185,  19,  11  mo.  1704.  Penn  &  Logan 
Correspondence,  Memoirs  of  Historical  Society  of  Pennsylvania, 
Vol.  X,  5.  Lloyd  attempted  to  regulate  the  practice  in  eject- 
ment in  his  bill  of  1706  which  was  rejected  by  the  governor. 
His  idea  was  to  require  a  real  lease,  entry  and  ouster  and  to  do 
away  with  the  fictitious  proceeding — "A  new  practice,  allowed 
only  in  Westminster  Hall."  II  Colonial  Records,  354,  February 
24,  1706-7. 


EARLY  COURTS  OF  PENNSYLVANIA      77 

enough  at  a  later  day,  to  use  the  action  of  ejectment 
with  success  in  the  Frankfort  Company's  case,  which 
will  be  referred  to  hereafter. 

The  repeal  of  the  Act  of  1701  left  the  administration 
f  justice  in  a  confused  state.  There  had  been  some 
debate  in  the  session  of  the  assembly  of  1705  upon  the 
subject  of  courts,  but  the  repeal  of  the  act  was  not 
known.  Upon  receipt  of  the  order  in  council,  Governor 
Evans  called  the  assembly  in  special  session,  in  Septem- 
ber, 1706,^  and  presented  to  that  body  an  act  for  estab- 
lishing courts,  drawn  up,  it  was  said,  by  some 
practitioners  therein.  The  assembly,  however,  requested 
that  the  matter  be  referred  to  the  new  house,  which  met 
in  October,  1706,  and  accordingly  at  the  following 
session  this  was  the  first  matter  under  discussion,  the 
governor  laying  his  bill  before  the  house  wath  his  open- 
ing address.  The  assembly,  or  rather  David  Lloyd  who 
dominated  that  body,  had  other  view^s  and  presented 
them  in  what  is  described  as  a  "long  and  tedious  bill," 
which,  on  being  read  in  council,  was  found  to  depart 
very  widely  from  the  plan  proposed  by  the  governor's 
advisers.^ 

We  have  not  the  text  of  these  rival  bills,  which  brought 
about  a  deadlock  between  the  governor  and  the  house, 
but  it  is  apparent  that  both  sides  were  struggling  for 
the  control  of  the  courts  and  in  view  of  the  expected 
surrender  of  the  government  to  the  Crown,  both  were 
equally  anxious  to  establish  their  position  before  that 
event.  ^ 

The  plan  endorsed  by  the  governor  included  county 
courts  with  civil  jurisdiction,  exclusive  in  cases  under 

'  II  Colonial  Records,  2C1,  September  19,  1706. 

2  II  Colonial  Records,  271,  14,  9  mo.  1706.  In  a  speech  the 
governor  refers  to  it  as  "the  longest  perhaps  that  ever  was 
drawn  up  in  America."     II  Colonial  Records,  313. 

» Penn  &  Logan  Correspondence,  Memoirs  of  Historical 
Society  of  Pennsylvania,  Vol.  X,  180. 


78      EARLY  COURTS  OF  PENNSYLVANIA. 

ten  pounds,  and  criminal  jurisdiction,  except  in  capital 
cases  which  were  to  be  tried  by  special  commissions  of 
oyer  and  terminer;  a  provincial  court  for  the  whole 
])rovince,  to  sit  ordinarily  at  Philadelphia  but  to  go  on 
circuit  twice  a  year,  with  original  jurisdiction  concurrent 
with  the  county  courts  in  cases  over  ten  pounds  as  well 
as  on  appeal  from  the  county  courts,  and  lastly,  a  court 
of  equity  to  be  held  by  the  governor  and  council.^  The 
assembly  ever  jealous  of  the  centralization  of  authority 
objected  to  a  separate  court  of  chancery  and  to  the 
exercise  of  original  jurisdiction  by  the  provincial  court. ' 
On  the  other  hand,  the  governor  pointed  out  that  the 
bill  proposed  by  the  assembly  contained  precisely  the 
same  faults  that  had  caused  the  rejection  of  the  Act  of 
1701;  that  it  went  into  matters  of  practice  at  great 
length  which  ought  to  be  settled  by  rule  of  court;  that 
the  chancery  practice  ought  to  conform  to  that  in  the 
other  English  dominions;  that  there  was  too  much 
leniency  shown  to  debtors  in  the  clauses  relating  to 
executions;  that  too  much  power  was  conferred  on  the 
court  of  the  city  of  Philadelphia;  that  the  provision  for 
the  payment  of  the  judges  was  inadequate,  and  that 
the  proprietors'  rights  were  interfered  with  in  the 
clause  providing  for  the  dismissal  of  the  judges  on  the 
address  of  the  assembly  and  for  the  appropriation  of  all 
fines  and  forfeitures  to  the  support  of  the  courts.^ 

The  controversy  began  politely  enough,  for  the 
governor  and  council  were  anxious  to  settle  the  admin- 
istration of  justice  on  a  firm  basis  and  to  persuade  the 
assembly  to  allow  a  fixed  salary  to  Roger  Mompesson, 
a  good  lawyer  who  had  been  persuaded  to  accept  the 
office   of  chief  justice.     But  as  time  passed  and  each 

'  II   Colonial  Records,   268,   3,  8  mo.   1706. 

2  II  Colonial  Records,  263,  23,  7  mo.  1706;  266,  25,  7  mo. 
1706;    276,  27,  9  mo.  1706. 

3  II  Colonial  Records,  272,  16,  9  mo.  1706. 


EARLY  COURTS  OF  PENNSYLVANIA.      79 

side  adhered  obstinately  to  its  own  view  the  tone  of 
the  respective  messages  became  warmer.  The  governor 
hinted  that  if  further  delay  occurred  he  would  establish 
the  courts  by  ordinance  and  charged  the  assembly  with 
grasping  for  power. 

"It  might  reasonably  be  thought  a  very  easy  business  to 
estabhsh  the  courts  by  a  law,  without  raising  new  disputes 
and  contending  for  such  Grants  of  Power  as  are  not  essential 
to  their  Constitution,  nor  were  ever  in  the  People  for  these  24 
years  past,  since  this  has  been  a  colony."' 

To  which  the  assembly  rejoined  that  whoever  advised 
the  governor  to  establish  courts  by  ordinance  was  an 
enemy  to  the  welfare  of  the  province;  that  they  were 
not  striving  for  power — 

"but  for  what  are  essential  to  ye  Administration  of  Justice  and 
agreeable  to  an  EngUsh  Constitution,  and  if  we  have  not  been 
in  possession  of  this  these  24  years,  we  know  where  to  place 
the  fault,  and  shall  only  say,  tis  high  time  we  were  in  the  enjoy- 
ment of  our  rights."^ 

It  is  needless  to  refer  at  greater  length  to  the  rhetorical 
flourishes  of  the  combatants,  which  did  not  add  par- 
ticularly to  clarity  of  reasoning.  Conferences  were 
held  and  bitter  language  used,  the  matter  at  one  time 
taking  the  form  of  a  personal  controversy  between  the 
hot-headed  young  governor  and  the  equally  fiery  speaker, 
when  the  latter  declined  to  rise  when  addressing  the 
governor  at  one  of  these  debates.^ 

The  assembly  then  proceeded  to  impeach  James 
Logan,  the  secretary  of  the  province,  charging  him  with 
attempting  to  subvert  the  charter  and  set  up  arbitrary 
government.     The    governor,    having    twice    adjourned 


1  II  Colonial  Records,  298,  23,  10  mo.  1706. 

2  II  Colonial  Records,  304,  January  15,  1706-7. 
«  II  Colonial  Records,  326,  February  6,  1706-7. 


so       EARLY  COURTS  OF  PENNSYLVANIA. 

the  courts  pending  the  discussion  and  now  despairing 
of  reaching  a  conclusion,  on  February  22,  1707,  issued 
an  ordinance  for  the  establishment  of  the  courts,  under 
a  clause  in  the  charter  which  authorized  the  proprietor 
to  make  wholesome  ordinances  for  the  preservation  of 
the  peace  and  the  better  government  of  the  people.^ 
The  expedient  was  somewhat  daring,  as  the  charter 
further  provided  that  such  ordinances  should  not  bind 
or  charge  any  person  for  or  in  their  "life,  members, 
freehold,  goods  or  chattels."  In  this  ordinance  the 
provincial  court  is  first  called  the  "Supream  Court"  of 
Pennsylvania."  The  assembly  prepared  a  bitter  remon- 
strance against  the  ordinance  and  adjourned.^ 

Under  this  ordinance,  which  embodied  the  undis- 
puted features  of  the  proposed  bills  in  a  clear  and  con- 
cise form,  the  courts  acted  during  the  remainder  of 
Evans's  and  the  first  two  years  of  Gookin's  administia- 
tion,  until,  in  1710,  when  tired  of  quarreling  over  non- 
essentials, a  court  act  was  passed.'*  By  this  act  a  court, 
called  the  "Supream  Court  of  Pennsylvania,"  was 
established,  consisting  of  four  judges  appointed  by  the 
governor,  two  to  constitute  a  quorum,  with  power  to 
hear  appeals  at  law  or  in  equity.  The  jurisdiction  and 
practice  of  the  quarter  sessions  and  common  pleas  were 
elaborately  defined  and  Governor  Evans's  ordinance  was 
followed  in  the  provision  that  all  capital  offenses  should 


'  II  Statutes  at  Large,  500;  Charter  and  Laws  of  Pennsylvania, 
319;    II  Colonial  Records,  349,  February  21,  1706-7. 

2  In  the  list  of  acts  before  the  Commissioners  of  Trade  in 
1694  is  one  purporting  to  be  entitled,  "Law  about  appeals  to 
the  Supream  Court,"  but  if  this  is  the  Act  of  1693  it  should 
have  teen  Provincial  Court.  Board  of  Trade  Journals,  Mss. 
Historical  Society  of  Pennsylvania,  Vol.  VII,  309. 

3  II  Colonial  Records,  362,  March  4,  1707. 

*  February  28,  1710-11,  II  Statutes  at  Large,  301;  II  Colonial 
Records,  552,  February  28,   1710-11. 


EARLY  COURTS  OF  PENNSYLVANIA.      81 

be   tried   before   commissioners    of   oyer   and   terminer 
specially  appointed  for  the  occasion. 

This  act  was,  with  minor  modifications,  the  same  as 
that  proposed  by  the  assembly  in  1706,  for  it  appears 
in  the  minutes  that  on  November  2,  1710,  a  bill  for 
establishing  courts  prepared  by  a  former  assembly  was 
read,  which,  being  very  long,  was  left  to  the  further 
consideration  of  the  house.  Governor  Gookin  was  of 
the  opinion  that  the  courts  could  be  better  regulated 
by  ordinance  and  that  three  judges  were  sufficient  for 
the  supreme  court,  but  ultimately  gave  in  on  most  of 
the  points  formerly  in  dispute.  The  act  is  indeed  long 
and  complicated,  embodying  an  almost  complete  code 
of  practice  in  both  civil  and  criminal  cases  and  on 
appeal,  with  very  definite  limitations  placed  on  arrests 
in  civil  actions.  One  proposal  of  the  governor  was 
adopted.  It  having  been  suggested  by  the  justices  that 
the  common  pleas  should  be  separated  from  the  sessions 
of  the  peace,  "for  that  the  Holding  'em  together  per- 
plexes Bench  Juries,  parties  &  Witnesses,"^  the  act  pro- 
vided that  the  terms  of  the  quarter  sessions  should 
begin  on  Mondays  or  Tuesdays  and  of  the  common  pleas 
on  the  Wednesdays  following.  By  a  fee  bill  adopted 
the  same  day,  the  chief  justice  was  allowed  thirty  shil- 
lings and  the  other  justices  twenty  shillings  for  every 
day  they  sat  in  court. ^  Both  of  these  acts  were  repealed 
by  the  queen  in  council  on  February  20,  1713,  by  advice 
of  the  solicitor  general.  Sir  Robert  Raymond,  who  was 
of  the  opinion  that  the  practice  provided  would  multiply 
trials  at  law  in  plain  cases  and  make  proceedings  in  law 
and  equity  insufferably  dilatory  and  expensive.^ 


»  II  Colonial  Records,  549,  February  10,  ITIO-U. 

2  II  Statutes  at  Large,  331.  Twenty  shillings  was  the  sum 
which  Governor  Evans  considered  "too  small  for  any  person 
duly  qualified  to  accept  of."  II  Colonial  Records,  273,  16,  9  mo. 
1706. 

3  II   Statutes  at  Large,  548;     I  Pennsylvania  Archives   (1st 

Series).  157. 


82      EARLY  COURTS  OF  PENNSYLVANIA. 

It  was  no  doubt  very  irritating  to  the  anti-proprietary 
party  that  acts  upon  which  they  had  expended  time 
and  thought  should  be  continually  repealed  by  the 
Crown  upon  pretexts  that  probably  concealed  the  true 
motives  for  such  action.  The  assembly  had,  however, 
hit  upon  a  method  of  preserving  its  legislation,  tempo- 
rarily at  least.  Under  the  charter,  all  laws  were  re- 
quired to  be  submitted  to  the  council  within  five  years 
of  their  enactment.  The  colonists  took  as  much  time 
as  they  pleased  before  submitting  the  acts,  and,  as  a 
result,  the  laws  generally  remained  in  force  nearly  five 
years,  and  when  the  assembly  was  notified  of  their 
repeal,  new  acts  on  similar  lines  were  passed.  Against 
such  tactics  the  commissioners  of  trade  vainly  pro- 
tested.^ During  the  intervals  between  the  repeal  of 
the  old  and  the  passage  of  the  new  court  acts  the  gov- 
ernor maintained  the  courts  either  by  special  commis- 
sions to  the  judges  or  by  general  ordinances. 

One  act  did  succeed  in  obtaining  favorable  recom- 
mendation, that  of  March  27,  1712-13,  relating  to  the 
organization  of  and  powers  of  orphans'  courts,  a  com- 
prehensive statute  which  defined  the  duties  of  that  court 
in  relation  to  the  estates  of  decedents,  and  the  care  of 
the  estates  of  minors,  and  became  the  basis  of  all  subse- 
quent legislation  extending  and  strengthening  the  juris- 
diction of  that  admirable  tribunal. 

It  would  take  up  too  much  space  to  go  over  all  the  acts 
that  fell  before  the  criticisms  of  the  council.  One,  that 
of  May  15,  1715,^  regulated  the  taking  of  appeals  to 
Great  Britain  and  required  the  appellant  to  give  recog- 
nizance in  double  the  amount  of  the  judgment.     The 

'  II  Statutes  at  Large,  554;  III  Statutes  at  Large,  441,  467. 
On  the  other  hand,  Penn  complained  of  the  expense  to  which 
he  was  put  in  endeavoring  to  have  the  acts  approved  by  the 
crown  officers. 

2  III  Statutes  at  Large,  32,  440,  466. 


EARLY  COURTS  OF  PENNSYLVANIA.      83 

objection  to  this  act  was  that  there  was  no  sum  limited 
for  which  an  appeal  might  be  brought,  as  provided  in 
the  instructions  to  the  governors  of  all  the  plantations, 
but  notice  of  this  repeal  does  not  seem  to  have  reached 
Pennsylvania,  and  the  act  was  printed  as  in  force  in  all 
compilations  of  the  laws  down  to  the  Revolution.  The 
first  definite  reference  to  these  appeals  is,  as  we  have 
seen,  in  the  commission  of  William  and  Mary  to  Governor 
Fletcher,  which  limited  appeals  to  cases  involving  more 
than  three  hundred  pounds.  Additional  instructions 
were  sent  to  the  proprietors  in  1726,^  directing  the  sus- 
pension of  execution  pending  the  final  determination 
of  appeals,  and  in  1753  still  more  explicit  instructions 
were  issued  to  a  number  of  colonies  including  Pennsyl- 
vania. By  these  instructions  the  governor  and  council 
were  directed  to  hear  appeals  from  the  courts  and  if 
any  of  the  judges  who  tried  the  case  appealed  were 
members  of  the  council  they  were  not  to  vote  but  to 
give  the  reasons  for  their  decision.  From  the  judg- 
ment of  the  provincial  council  an  appeal  was  to  be 
allowed  to  the  king  in  council  provided  the  matter  in 
controversy  involved  five  hundred  pounds,  and  in  cases 
of  less  than  that  amount  where  future  rights  might  be 
bound  or  the  king's  revenue  affected.  The  appellant 
was  required  to  enter  security  for  the  judgment  and 
costs  and  pending  the  appeal  execution  was  to  be  sus- 
pended,  unless    security    was    entered   for    restitution.^ 


1  Charter  and  Laws  of  Pennsylvania,  395;  I  Pennsylvania 
Archives  (1st  Series),  19G. 

2  II  Pennsylvania  Archives  (1st  Series),  107,  see  also,  VIII 
New  Jer.sey  Archives  (1st  Series)  190.  For  appeals  in  other 
colonies,  see  Winthrop  v.  Lechmere,  1  Thayer's  Cases  on  Con- 
stitutional Law,  34;  VII  Connecticut  Colonial  Records,  571 
(1727);  Frost  v.  Leighton  (Mass.  1738),  II  American  Historical 
Review,  229;  Perry  v.  Randolph,  Barradal's  Reports,  2  Virginia 
Colonial  Decisions,  22  (1726).  In  the  introduction  to  Volume 
II  of  Actsof  the  Privy  Council  of  England,  Colonial  Series  (1910), 


84      EARLY  COURTS  OF  PENNSYLVANIA. 

The  directions  for  a  judicial  hearing  before  the  provin- 
cial council  must  have  been  given  in  ignorance  of  the 
fact  that  under  the  Frame  of  Government  of  1701  the 
council  in  Pennsylvania  did  not  exercise  judicial  powers. 
In  1718  two  murderers,  Hugh  Pugh  and  Lazarus 
Thomas,  attempted  to  gain  a  reprieve  by  an  appeal  to 
the  king,  but  the  council  ignored  their  petition  on 
account  of  the  notoriety  of  their  crimes.^  The  case  of 
Father  gill  v.  Stover,-  involving  the  admissibility  in  evi- 
dence of  a  letter  from  the  secretary  of  the  land  office 
to  a  deputy  surveyor,  is  said  by  the  reporter  to  have 
been  affirmed  on  appeal  to  the  king,  and  the  docket 
of  the  supreme  court  shows  that  such  an  appeal  was 
taken. ^  In  fact  there  are  several  entries  of  this  sort. 
In  Brown  v.  McMurtrie,  April  Term,  1763,  judgment  is 
entered  for  the  plaintiff  on  a  special  verdict,  whereupon 
Mr.  Galloway  "prays  leave  to  appeal  to  the  King  in 
Council,"  which  is  granted  on  giving  security  agreeable 
to  the  act  of  assembly  and  paying  the  costs.  Below  in 
another  handwriting  is  the  entry,  "Judgment  of  the 
Supream  Court  confirmed  by  his  Majesty  in  Council."* 
There  is  a  similar  entry  in  Nixon  v.  Long,  where  Chew 
and  Galloway  appeared  for  the  plaintiff  and  Dickinson 
and  Ross  for  the  defendant.  Judgment  for  the  plaintiff 
was  entered  on  a  demurrer  to  the  evidence  and  on 
appeal  to  the  king  the  judgment  was  "confirmed."^  There 
are  two  other  entries  of  appeals  in  1765,®  and  at  April 

will  be  found  an  interesting  account  of  the  practice  of  the 
council  on  appeal,  while  in  the  text  are  numerous  examples  of 
appeals  from  the  West  India  Islands  as  well  as  from  the  colonies 
on  the  American  Continent  between  1680  and  1720. 

1  III  Colonial  Records,  30,  May  8,  1718. 

2  1  Dallas's  Reports,  6  (1763). 

3  April  Term,  1763,  Docket  No.  3,  page  450. 

*  April  Term,  1763,  Docket  No.  3,  page  448. 
'  April  Term,  1765,  Docket  No.  4,  page  93. 

*  September  Term,  1765,  Docket  No.  4,  pages  120,  18L 


EARLY  COURTS  OF  PENNSYLVANIA.      85 

Term,  17G7,  there  are  three  suits  by  the  same  plaintiff 
against  different  defendants,  in  which  appeals  to  the 
king  were  taken,  security  entered  and  transcripts  of 
the  record  issued,  but  the  result  is  not  recorded.^ 

It  is  interesting  to  note,  that  to  the  appeals  from  the 
various  colonies  and  from  the  Channel  Islands  is  to  be 
traced  the  jurisdiction  of  the  judicial  committee  of  the 
privy  council.  The  standing  committee  for  trade  and 
plantations  was,  by  an  order  of  1G91,  directed  to  hear 
appeals  and  report  thereon  to  the  king  in  council.^  Few 
cases  came  before  the  committee  at  first,  but  gradually 
their  proceedings  took  a  judicial  form,  the  judgment 
of  the  members  became  a  judicial  decision,  and  the 
adoption  of  their  report  a  pro  forma  matter.  At  this 
early  period  their  decisions  are  but  occasionally  noticed 
in  the  English  reports,  but  Lord  Mansfield,  in  his  speech 
on  the  Stamp  Act,  stated  that  he  had  in  his  early  prac- 
tice been  much  concerned  in  the  plantation  causes 
before  the  privy  council  and  so  had  become  acquainted 
with  American  affairs.^ 

The  attempted  appeal  of  Pugh  and  Thomas  was  based 
on  the  fact  that  seventeen  of  the  grand  jury  which  had 
indicted  them  and  eight  of  the  petit  jury  who  found 
them  guilty  were  Quakers  who  had  qualified  by  affirma- 
tions instead  of  oaths.  This  calls  attention  to  a  diffi- 
culty that  had  long  troubled  the  colony.  The  conscien- 
tious scruples  of  the  Friends  against  judicial  oaths  had 

1  Swift  V.  Hawkins,  Lightfoot  and  Jones,  Docket  No.  4,  page 
50  L 

2  Finlason's  History  of  the  Judicial  Committee  of  the  Privy 
Council,  39;  V  Pennsylvania  Archives  (2d  Series),  436,  658. 
While  there  was  a  standing  committee  for  hearing  appeals, 
these  petitions  seem  to  have  been  frequently  referred  to  special 
committees.  The  present  judicial  committee  dates  from  the 
Act  of  3  &  4  William  IV,  chapter  41. 

*  Mansfield's  speech  on  the  Stamp  Act,  reprinted  in  Library 
of  Original  Sources,  Vol.  VII,  84. 


8G      EARLY  COURTS  OF  PENNSYLVANIA. 

been  taken  advantage  of  by  their  opponents,  led  by 
Colonel  Quarry,  to  drive  them  from  office  and  lessen 
their  power.*  An  order  had  been  ])rocured  from  Queen 
Anne  enjoining  the  administration  of  oaths  to  all  persons 
v;illing  to  take  them,  an  order  which  the  Quaker  justices 
were  loath  to  enforce,  while  the  justices  of  the  church 
party  declined  to  administer  affirmations,  lest  they 
should  mistake  the  sincerity  of  the  affiant's  religious 
scruples.  Constant  friction  and  mistrials  resulted  from 
this  state  of  affairs,  and  more  than  one  act  was  passed 
on  the  subject  only  to  meet  with  technical  objections  in 
England.^ 

The  popularity  of  Governor  Keith  enabled  him  to 
obtain  the  passage  of  the  Act  of  May  31,  1718,^  which 
permitted  affirmations  by  such  as  conscientiously 
scrupled  to  take  an  oath,  but  at  the  same  time  restored 
much  of  the  rigorous  criminal  code  of  England,  which 
the  humanity  of  Penn  had  prevented  from  being  put  in 
force  in  the  province.  A  few  years  later  the  Act  of 
May  9,  1724,*  was  passed  which  carefully  prescribed 
the  forms  of  declarations  of  fidelity,  abjurations  and 
affirmations  to  be  taken  by  Quakers,  with  a  proviso  that 
the  act  was  not  to  be  construed  as  repealing  the  Act  of 
1718.  To  this  the  assembly  in  1739  attempted  to  add 
a  supplement  for  the  relief  of  Scotch  Presbyterians,  who 
had  conscientious  scruples  against  kissing  the  Bible, 
permitting  them  to  take  the  oath  in  the  form 
commonly  administered  in  Scotland.  Approval  of  this 
act  was  refused  on  the  advice  of  Sir  Dudley  Ryder  and 
Sir  John  Strange,  who  criticised  its  loose  wording  and 
called  attention  to  the  danger  of  giving  way  to  new 


1  II  Colonial  Records,  38,  17,  3  mo.  1703. 

2  Shepherd's     Proprietary     Government     in      Pennsylvania, 
chapter  VII,  351. 

3  III  Statutes  at  Large,  199;    III  Colonial  Records,  63. 
*  III  Statutes  at  Large,  427. 


EARLY  COURTS  OF  PENNSYLVANIA.      87 

scruples  about  oaths. ^  Subsequently  the  privy  council 
relented  and  in  1772  an  act  was  passed  and  approved 
which  permitted  witnesses  to  qualify  either  by  a 
solemn  affirmation,  an  oath  in  the  usual  form  or  an 
oath  with  uplifted  hand.'- 

From  the  passage  of  the  Act  of  1718  capital  punish- 
ment for  the  greater  felonies  was  rigorously  employed, 
until  in  1794,  principally  through  the  efforts  of  Judge 
Bradford,  the  death  penalty  was  abolished  in  all  cases 
except  high  treason  and  willful  murder.  As  a  natural 
consequence  the  number  of  appeals  for  executive 
clemency  steadily  increased  and  the  minutes  of  the 
council  are  full  of  such  petitions.^  One  of  the  most 
curious  is  the  following:— 

"A  Petition  of  John  Remington,  Attorney  at  Law,  delivered 
to  the  President,  was  by  him  laid  before  the  Board  and  read, 
setting  forth  that  the  Petitioner  was  unfortunately  deluded  & 
drawn  into  the  idle  Diversion  of  performing  the  Ceremony  of 
making  a  free  Mason,  in  Order  to  which  a  Sport  called  Snap 
Dragon  was  prepared,  at  which  the  Petitioner  was  perswaded 
to  be  present;  that  unhappily  some  of  the  burning  Spirit  used 
in  this  Sport  was  thrown  or  spilt  on  the  Breast  of  one  Daniel 
Rees,  which  so  burnt  or  scalded  him  that  in  a  few  days  after 
the  said  Daniel  dyed;  That  Doctor  Evan  Jones  had  been  indicted 
as  Principle  for  the  Murder  of  the  said  Daniel  Rees,  &  by  a  Jury 
of  the  County  was  found  guilty  of  Manslaughter;  That  the 
Petitioner  was  also  indicted  as  aiding  &  abetting  the  said  Evan 
Jones,  and  altho'  no  Evidence  did  or  could  appear  to  prove  that 
the  Petitioner  had  any  hand  in  the  throwing  or  spilling  the  said 
Liquor  on  the  Body  of  the  said  Daniel,  or  was  privy  to  any  De- 
sign or  Intention  of  doing  harm  to  the  said  Daniel,  or  to  any 
other  Person,  yet  the  same  Jury  had  brought  in  a  Verdict  of 
Manslaughter  Hkewise  against  the  Petitioner,  which  if  put 
in  Execution  would  tend  to  the  utter  Ruin  of  the  Petitioner, 
his  Wife,  and  two  small  children,  &  therefore  humbly  praying 
that  the  President  &  Council  would  be  pleased  to  grant  him  a 
Pardon;   Whereupon  the  Board  are  of  Opinion  that  the  Petitioner 

'  IV  Statutes  at  Large,  337,  483. 

2  March  21,  1772,  VIII  Statutes  at  Large,  239. 

'  See  III  Colonial  Records,  35,  June  15,  1718. 


SS      EARLY  COURTS  OF  PENNSYLVANIA. 

should  be  pardoned  the  Manslaughter  aforesaid,  and  the  burning 
in  the  hand,  which  by  reason  thereof,  he  ought  to  suffer;  But  it 
being  observed  that  in  the  Course  of  the  Tryal  a  certain  wicked  & 
irreligious  Paper  had  been  produced  &  read,  which  appeared 
to  have  been  composed  by  the  said  Remington,  who  had  made 
the  aforesaid  Daniel  Rees  repeat  the  same,  as  part  of  the  form 
to  be  gone  thro'  on  initiating  him  as  a  free  Mason;  the  Board 
therefore  agreed  that  the  Pardon  should  be  so  restricted  as  that 
it  might  not  be  pleaded  in  Bar  of  any  Prosecution  that  should 
hereafter  be  commenced  against  the  said  Remington  on  account 
of  the  said  scandalous  Paper."' 

It  would  seem  that  with  the  constantly  increasing 
population,  a  disorderly  element  was  introduced  into 
the  community  that  rendered  stringent  measures 
necessary  for  the  protection  of  society.  In  1726  a  riotovts 
crowd  burnt  down  the  pillory  and  stocks  in  the  market 
place  and  the  governor  was  obliged  to  issue  a  proclama- 
tion for  the  suppression  of  such  tumults  in  the  future.^ 
In  the  newspapers  will  be  found  complaints  against 
the  authorities  in  England  for  making  the  colony  a 
dumping  ground  for  criminals  and  vagabonds.  ^  In 
1717  the  grand  jury  present: — 

"Whereas,  it  has  been  frequently  and  often  presented  by  several 
former  grand  juries  for  this  city,  the  necessity  of  a  ducking  stool 

1  IV  Colonial  Records,  276,  Feb.  3,  1737-8.  A  full  report 
of  this  aflfair  will  be  found  in  the  Pennsylvania  Gazette,  February 
7,  1737-8.  It  appears  that  the  parties  concerned  were  not  Free 
Masons,  but  practical  jokers. 

2  III  Colonial  Records,  274,  October  4,  1726. 

^  As  early  as  1685  an  ecclesiastical  offender  was  offered  an 
opportunity  to  emigrate  to  the  new  colony,  as  appears  by  the 
Privy  Council  minutes;  "Whereas  it  has  been  this  day  repre- 
.sented  to  his  majesty  that  Christopher  Sibthorpe,  brazier,  is  a 
prisoner  in  Woodstreet  compter  upon  a  capias  on  the  Writt 
de  excomunicato  capiendo,  his  majesty  was  pleased  to  order  the 
sheriffs  of  the  city  of  London  (taking  good  security  that  the 
said  Christopher  do  forthwith  transport  himself  and  family  to 
Pennsylvania  in  America  and  paying  the  charges  of  the  court) 
sett  him  at  liberty  in  order  to  his  sayd  voyage."  Acts  of  the 
Privy  Council  of  England,  Colonial  Series  (1910),  Vol. ,11,  p.  79, 
§  176.     The  exile  was  an  active  Friend. 


EARLY  COURTS  OF  PENNSYLVANIA.      89 

and  house  of  correction,  for  the  just  punishment  of  scolding, 
drunken  women,  as  well  as  divers  other  profligate  and  unruly 
persons  in  this  place,  who  are  become  a  public  nuisance  to  the 
town  in  general;  therefore,  we  the  present  grand  jury,  earnestly 
again  present  the  same  to  this  Court  of  Quarter  Sessions,  desiring 
their  immediate  care;  that  those  public  conveniences  may  not 
be  longer  delayed,  but  with  all  possible  speed  provided  for  the 
detection  and  quieting  such  disorderly  persons."  And  a  few 
years  later,  a  second  inquest,  "taking  in  consideration  the  great 
disorders  and  the  turbulent  behaviour  of  many  people  in  this 
city,  present  the  great  necessity  of  a  ducking-stool  for  such 
people,  according  to  their  deserts."' 

There  are  many  indictments  for  forestalling  the 
markets  and  regrating,  offenses  against  public  trade 
that  excited  in  that  day  the  popular  attention  now 
centered  on  rebates  and  trusts. 

Some  presentments  of  the  grand  jury  of  Philadelphia 
will  further  illustrate  the  care  of  our  ancestors  for  the 
manners  and  morals  of  the  community. - 

'  The  Forum,  Vol.  I,  231.  It  is  a  matter  of  some  doubt  as  to 
whether  the  ducking-stool  ever  was  actually  used  in  Philadelphia. 
In  1769  a  woman  was  sentenced  to  be  ducked  at  the  end  of 
Market  street  wharf,  but  we  are  not  informed  whether  the 
sentence  was  carried  into  execution.  In  1779  Ann  Mease  was 
sentenced  to  the  same  punishment  but  the  council  remitted 
the  ducking  January  26,  1780.  XII  Colonial  Records,  235. 
In  1781  there  was  another  conviction  but  the  sentence  was  not 
carried  out.  In  1824  the  supreme  court  held  that  the  ducking 
stool  was  not  the  punishment  for  a  common  scold  in  Pennsyl- 
vania. James  v.  Commonwealth,  12  Sergeant  &  Rawle,  221 
(1824).  The  Act  of  March  10,  1683,  reenacted  in  1693,  pro- 
vided that  a  scold  should  stand  one  hour  in  a  public  place  with 
a  gag  in  the  mouth.  Charter  and  Laws  of  Pennsylvania,  144, 
198.  This  was  supplied  by  the  Act  of  November  27,  1700, 
II  Statutes  at  Large,  85,  which  provided  that  the  gagged 
person  should  stand  in  some  public  place  at  the  discretion  of 
the  magistrate.  The  act  was  repealed  in  council  becau.se  it  was 
not  stated  how  long  the  person  should  stand  gagged  and  the 
penalty  was  too  great.     II  Statutes  at  Large,  466. 

^  Quotations  from  Mss.  Docket,  given  in  Appendix  to  Vol.  I 
of  David  Paul  Brown's  Forum,  573. 


90      EARLY  COURTS  OF  PENNSYLVANIA. 

"Philadelphia,  the  26th  day  of  the  7th  month,  1702. 

"We,   the    Grand    Inquest   for  this   Corporation,   do  present 

George  Robinson,  butcher,  for  being  a  parson  of  evill  fame  as 

a    common    swarer,    and    a    common    drunker,    &    particularly 

upon  the  twenty-third  day  of  this  instant,  for  swaring  three 

oths    in    the    market-place,  &   also    for   utering   two    very   bad 

curses  the  twenty-sixth  day  of  this  instant.     Signed  in  behalf 

of  self  &'  fellows,  by 

"Jno.   Pons,  ferman." 

"Submits,  and  puts  himself 
in  mercy  of  the  Court." 

"George  Robinson,  fined  xxx  s. 
for  the  oaths  and  curses." 


"Philadelphia,  ss. 
"We,  the  Jurors  for  this  city,  doe  present  phillip  Eilbeck, 
of  Chester  County,  for  that  on  the  twenty-third  Day  of  this 
Instant,  at  night,  at  the  house  of  Margaret  Garret,  in  the  front 
street,  in  Philadelphia,  aforsd.  Did  then  &  theire  mennace  & 
threaten  herman  Debeck,  by  drawing  his  bagenet  and  making 
a  pass  at  him,  the  said  herman:  &  at  the  same  time  &  place 
abovesaid,  did  utter  three  curses,  to  the  terrifiding  of  the  said 
herman  &  other  the  Qeen's  Leige  people,  contrary  to  the  laws 
in  that  case  made  &  provided.  Signed  in  behalf  of  the  Rest  of 
the  Jurors,  this  28th  day  of  the  7th  mo.,  1702,  pr. 

"Jno.  Psons,  forman." 
"Appears  and  submits,  and  puts 
himself  in  mercy  of  the  Court." 

"Eilbeck  for  breach  of  the' 
peace  and  curses,  xxx  s." 


"The  3d  of  the  12th  mon:  1702. 
"We  of  the  Grand  Jury  for  the  Citty  of  Philadelphia,  do  psent 
John  Satell  for  passing  of  bad  counterfeit  Coine  to  Anne  Simes, 
on  the  2nd  of  January  Last  past  in  her  husbands  house,  now 
Living  in  Philadelphia,  &  Also  finding  the  mettal  in  his  pocket, 
which  we  think  the  Money  was  made  withall. 

"Signed  in  behalf  of  the  Rest, 

"Abra.  Hooper,  foreman." 


EARLY  COURTS  OF  PENNSYLVANIA.      91 

"Philadelphia,  ye  4th  of  the  12th  mon.,  1702. 
"We,   of   ye   Grand   Jury   for  the   Citty  of   Philadelphia,   Do 
psent  John  Joyse,  for  having  of  to  wifes  at  once,  which  is  boath 
against  the  law  of  God  and  man. 

"Signed  in  behalf  of  the  rest, 

"Abra.  Hooper,  foreman." 

"Philadelphia,  ye  6th  of  the  3rd  month,  1703. 
"We,  of  the  Grand  Jur\'  for  this  city.  Doe  present  Alexander 
Paxton  &  his  wife,  for  letting  a  house  to  John  Lovet,  he  being 
a  Stranger,  &  have  not  Given  security  for  The  In  Demnifying 
of  this  Corporation. 

"Signed  in  behalf  of  the  rest, 

"Abra.  Hooper,  foreman." 

"Philadelphia,  this  third  day  of  November,  1703. 
"We  doe  also  present  Jon  Furnis  &  Thomas  McCarty  &  Thomas 
Anderson  &  henery  Flower,  barbers,  for  triming  people  on  first 
days  of  the  weeks,  commonly  called  sunday,  contrary  to  the 
law  in  that  case  made  &  provided. 

"Signed  in  behalf  of  the  rest  of  the  Jurors, 

"John  Redman,  foreman." 

In  1731  an  execution  took  place  at  New  Castle  which, 
it  is  to  be  hoped,  was  exceptional  in  the  annals  of  the 
colonies.  Catherine  Bevan,  together  with  a  servant 
named  Peter  Murphy,  were  indicted,  tried  and  found 
guilty  of  the  murder  of  the  woman's  husband,  Henry 
Bevan.  The  conviction  would  seem  to  have  been 
obtained  principally  upon  the  confession  of  the  servant. 
By  the  common  law  at  that  time  the  murder  of  a  husband 
by  his  wife  was  petit  treason,  and  the  punishment  was 
to  be  drawn  and  burnt.  Accordingly,  on  September  10, 
1731,  the  man  was  hanged  and  the  woman  burnt  pursu- 
ant to  their  sentences.^     A   gruesome  account  of  the 


'  Such  executions  were  not  unusual  in  England.  Sidney  refers 
to  a  number,  mentioned  in  the  newspapers,  including  two 
in  1735,  one  in  1737,  two  in  1739  and  one  as  late  as  1789.  Sidney's 
England  in  the  Eighteenth  Century,  Vol.  II,  299. 


92  EARLY  COURTS  OF  PENNSYLVANIA. 

affair    appears    in    Franklin's    "Pennsylvania    Gazette" 
for  September  23,  1731: — 

"She  deny'd  to  the  last  that  she  acted  any  part  in  the  murder 
and  could  scarce  be  brought  to  own  that  she  was  guilty  of  con- 
senting. Neither  of  them  said  much  at  the  place  of  execution. 
The  man  seemed  penitent  but  the  woman  appear'd  hardened. 
It  was  designed  to  strangle  her  dead  before  the  fire  could  touch 
her;  but  its  first  breaking  out  was  in  a  stream  which  pointed 
directly  upon  the  rope  that  went  round  her  neck,  and  burnt 
it  off  instantly  so  that  she  fell  alive  into  the  flames,  and  was  seen 
to  struggle." 

To  return  to  the  courts.  At  a  meeting  of  the  council 
held  on  November  9,  1719,  Governor  Keith  called 
attention  to  the  repeal  of  the  several  acts  relating  to 
courts,  and  proposed  that  the  board  consider  the  best 
means  of  meeting  the  inconvenience  caused  thereby. 
The  consensus  of  opinion  was  that  the  governor  should 
issue  special  commissions  authorizing  the  justices  to 
hold  court  on  the  days  when  they  should  be  held  under 
the  repealed  laws.  Similar  action  was  taken  in  the 
following  March  in  reference  to  the  supreme  court,  and 
David  Lloyd,  who  was  now  chief  justice,  prepared  the 
forms  of  commission.  In  this  way  the  courts  were  con- 
tinued until  at  a  meeting  of  the  council,  May  12,  1722, 
it  was  observed  that  the  courts  would  be  "more  regu- 
larly and  effectuahy  established  by  ordinance,  as  they 
are  done  in  some  of  our  neighboring  governments,  than 
by  any  particular  Commissions,"  and  it  was  recom- 
mended that  the  matter  be  brought  to  the  attention  of 
the  house  of  representatives.  A  bill  was  promptly 
passed  and  messaged  to  the  council,  where  it  was  referred 
to  Richard  Hill,  Isaac  Norris,  James  Logan  and  the 
attorney  general,  Andrew  Hamilton,  for  amendment. 
The  bill  as  amended  was  returned  to  the  house,  and  on 
May  22,  1722,  became  a  law.^ 


Ill  Statutes  at  Large,  298. 


EARLY  COURTS  OF  PENNSYLVANIA.      93 

This  act  apparently  was  never  considered  by  the  Crown, 
but,  in  some  manner,  was  allowed  to  become  a  law  by 
lapse  of  time,  according  to  the  charter.  The  reason  for 
its  escape  lies  probably  in  an  oversight  of  the  clerks 
of  the  council  rather  than  in  any  intention  on  the  part 
of  the  board  to  give  it  even  a  tacit  approval.  The  act 
appears  in  a  list,  under  consideration  by  the  board  of 
trade  in  1739,  which  the  lords  commissioners  could 
not  find  to  have  ever  been  approved.^  Mr.  Paris,  the 
agent  for  the  colony,  after  tedious  searches,  found  some 
of  these  acts  "laid  up  in  a  by  comer  of  the  Board  of  Trade 
and  covered  very  thick  with  dust."  In  the  list  the  act 
we  are  discussing  is  marked  "supplied."  As  a  matter 
of  fact,  three  months  before  the  time  for  its  consideration 
had  expired,  the  act  had  been  supplied  by  the  Act  of 
August  27,  1727,"  which  was  repealed  by  order  in  council 
September  21,  1731.  In  repealing  the  latter  act,  the 
point  seems  to  have  been  overlooked  that  the  Act  of 
1722  was  revived  by  the  repeal,  and  the  question  of  the 
Crown's  power  to  pass  upon  it  then  was  not  raised. 

Upon  the  repeal  of  the  Act  of  1727  a  special  session  of 
the  assembly  was  called,  and  an  act  passed  formally 
reviving  the  Act  of  1722.^  This  reviving  act  seems  to 
have  been  allowed  to  become  a  law  by  lapse  of  time. 
Mr.  Fane,  the  king's  counsel,  to  whom  it  was  referred 
by  the  lords  commissioners,  saw  no  objection  to  it. 
The  Act  of  1722,  which  in  many  of  its  provisions  re- 
mained in  force  until  after  the  Revolution,  provided 
for  county  courts  of  quarter  sessions,  composed  of 
justices  appointed  by  the  governor,  three  to  constitute 
a  quorum,  and  for  similar  county  courts  of  common 
pleas,  to  be  held  after  the  quarter  sessions  by  justices, 
also  appointed  by  the  governor,  with  authority  to  hold 

»  III  Statutes  at  Large,  488. 

^  IV  Statutes  at  Large,  84. 

3  November  27,  1731,  IV  Statutes  at  Large,  229. 


94      EARLY  COURTS  OF  PENNSYLVANIA. 

pleas  of  assizes,  scire  facias,  replevins  and  all  manner 
of  actions,  civil,  personal,  real  and  mixed,  and  to  grant 
writs  of  partition  and  writs  of  view. 

As  to  the  supreme  court,  the  Act  of  1722  provided 
as  follows: — 

"And  be  it  further  enacted  by  the  authority  aforesaid,  That 
there  shall  be  holden  and  kept  at  Philadelphia  a  court  of  record 
twice  in  every  year:  (That  is  to  say)  on  the  twenty-fourth  day 
of  September  and  the  tenth  day  of  April,  if  the  same  days,  or 
either,  do  not  happen  to  be  the  First  day  of  the  week,  and  in 
such  case  the  said  court  shall  be  held  on  the  next  day  following; 
which  said  court  shall  be  called  and  styled  the  supreme  court  of 
Pennsylvania.  And  that  there  shall  be  three  persons  of  known 
integrity  and  ability,  commissionated  by  the  governor,  or  his 
lieutenant  for  the  time  being,  by  several  distinct  patents  or 
commissions,  under  the  great  seal  of  this  province,  to  be  judges 
of  the  said  court,  one  of  whom  shall  be  distinguished  in  his 
commission  by  the  name  of  chief-justice.  And  every  of  the 
said  justices  shall  have  full  power  and  authority,  by  virtue  of 
this  act,  when  and  as  often  as  there  may  be  occasion,  to  issue 
forth  writs  of  habeas  corpus,  certiorari  and  writs  of  error,  and 
all  remedial  and  other  writs  and  process  returnable  to  the  said 
court,  and  grantable  by  the  said  judges  by  virtue  of  their  office, 
in  pursuance  of  the  powers  and  authorities  hereby  given  them. 

"Provided  always.  That  upon  (any)  issue  joined  in  the  said 
supreme  court,  such  issue  shall  be  tried  in  the  county  from  whence 
the  cause  was  removed,  before  the  judges  aforesaid,  or  any  two 
of  them,  who  are  hereby  empowered  and  required,  if  occasion 
require,  to  go  the  circuit  twice  in  every  year,  *  *  *  *  g^j^^j  ^q  (Jq 
generally  all  those  things  that  shall  be  necessary  for  the  trial 
of  any  issue,  as  fully  as  justices  of  nisi  prius  in  England  may  or 
can  do. 

"And  that  the  said  judges,  or  any  two  of  them,  shall  have  full 
power  to  hold  the  said  court,  and  therein  to  hear  and  determine 
all  causes,  matters  and  things,  cognizable  in  the  said  court,  and 
also  to  hear  and  determine  all  and  all  manner  of  pleas,  plaints 
and  causes,  which  shall  be  removed  or  brought  there  from  the 
respective  (general)  quartersessions  of  the  peace  and  courts  of 
common  pleas,  to  be  held  for  the  respective  counties  of  Phila- 
delphia, Chester  and  Bucks,  as  also  for  the  city  of  Philadelphia, 
or  from  any  other  court  of  this  province,  by  virtue  of  any  of  the 


EARLY  COURTS  OF  PENNSYLVANIA.      95 

said  writs.  And  to  examine  and  correct  all  and  all  manner 
of  errors  of  the  justices  and  magistrates  of  this  province,  in 
their  judgments,  process  and  proceedings  in  the  said  courts, 
as  well  as  in  all  pleas  of  the  Crown,  as  in  all  pleas  real,  personal 
and  mixed;  and  thereupon  to  reverse  or  afifirm  the  said  judg- 
ments, as  the  lav/  doth  or  shall  direct.  And  also  to  examine, 
correct  and  punish  the  contempts,  omissions  and  neglects,  favors, 
corruptions  and  defaults,  of  all  or  any  of  the  justices  of  the  peace, 
sheriflfs,  coroners,  clerks  and  other  officers  within  the  said  respec- 
tive counties.  And  also  shall  award  process  for  levying,  as  well 
of  such  fines,  forfeitures  and  amercements,  as  shall  be  estreated 
into  the  said  supreme  court,  as  of  the  fines,  forfeitures  and 
amercements,  which  shall  be  lost,  taxed  and  set  there,  and  not 
paid  to  the  uses  they  are  or  shall  be  appropriated. 

"And  generally  shall  minister  justice  to  all  persons,  and  exercise 
the  jurisdictions  and  powers  hereby  granted  concerning  all  and 
singular  the  premises  according  to  law,  as  fully  and  amply,  to  all 
intents  and  purposes  whatsoever,  as  the  justices  of  the  court  of 
King's  Bench,  common  pleas  and  exchequer  at  Westminster, 
or  any  of  them,  may  or  can  do. 

"Saving  to  all  and  every  person  and  persons,  his,  her  or  their 
heirs,  executors  and  administrators,  their  right  of  appeal  from 
the  final  sentence,  judgment  or  decree  of  any  court  within  this 
province,  to  His  Majesty  in  council,  or  to  such  court  or  courts, 
judge  or  judges,  as  by  our  Sovereign  Lord  the  King,  his  heirs 
or  successors,  shall  be  appointed  in  Britain,  to  receive,  hear  and 
judge  of  appeals  from  His  Majesty's  plantations. 

"Provided,  The  person  appealing  shall,  upon  entering  his 
appeal  in  the  court  where  the  sentence,  judgment  or  decree  shall 
be  given  in  this  province,  pay  all  the  costs  before  that  time 
expended  in  the  prosecution,  or  defending  the  said  suit;  and  shall 
further  enter  into  bond,  with  two  good  and  sufficient  securities  in 
the  sum  of  three  hundred  pounds,  to  the  defendant  in  the  appeal, 
conditioned  to  prosecute  the  said  appeal  with  effect  within  the 
space  of  eighteen  months  after  the  entry  of  such  appeal,  and  to 
satisfy  the  judgment  of  the  court  from  which  he  appeals;  and 
further,  to  pay  all  such  costs  and  damages  as  shall  be  adjudged 
to  him  to  pay,  in  ca.se  a  sentence,  judgment  or  decree,  pass  again.-^t 
the  said  appellant,  or  in  case  he,  she  or  they  fail  to  prosecute 
their  appeal  with  efi'ect. 

"And  be  it  further  enacted  by  the  authority  aforesaid.  That 
the  said  judges  of  the  supreme  court  shall  have  power  and  are 
hereby  authorized  and  empowered,  from  time  to  time,  to  deliver 


96      EARLY  COURTS  OF  PENNSYLVANIA. 

the  gaols  of  all  persons  which  now  are  or  hereafter  shall  be  com- 
mitted for  treasons,  murders,  and  such  other  crimes  as  (by  the 
laws  of  thi;  province)  now  are  or  hereafter  shall  be  made  capital 
or  felonies  of  death  as  aforesaid.  And  for  that  end  from  time 
to  time  to  issue  forth  such  necessary  precepts  and  process,  and 
force  obedience  thereto,  as  justices  of  assize,  ju.stices  of  oyer 
and  terminer,  and  of  gaol  delivery,  may  or  can  do  in  the  realm 
of  Great  Britain." 

We  have  referred  to  the  ohort-lived  Act  of  August  27, 
1727.    This  act  was  almost  a  counterpart  of  the  Act  of 
1722,  but  was  designed  to  deprive  the  supreme  court 
of  the  power  to  institute  original  process.     Its  repeal 
was  accomplished  by  John  Moore,  the  king's  collector 
of  customs  at  Philadelphia,  who  strongly  objected  to  it 
on  the  ground  that  actions  involving  the  revenue  would 
thenceforth  have  to  be  tried  in  the  county  courts.    From 
the  statements  of  Moore  and  Fitzwilliam,  the  surveyor 
general  of  the  customs,  it  would  appear  that  in   1724 
there  arrived  at  Philadelphia  the  ship  Fame  purporting 
to  carry  emigrants  from  the  Palatine,  but  really  con- 
taining a  cargo  of  East  India  goods  from  Holland  and 
articles  of  European  manufacture  which  the  navigation 
laws  required  to  be  imported  from  England  only.    Moore 
seized   the  ship  but   it  was   forcibly  taken   out  of  his 
possession  by  a  mob,  towed  down  the  river  and  most 
of  the  cargo  unloaded.     Then,  it  is  stated,  Sir  William 
Keith  made  a  fresh  seizure  in  a  collusive  action  brought 
in  the  county  court  and  the  ship  was  sold  for  a  trifling 
sum.     Moore  acting  by  advice  of  Sir  Philip  Yorke,  the 
attorney-general,  brought  actions  in  the  supreme  court 
of  Pennsylvania  against  the  parties  concerned,  where- 
upon Keith  and  his  colleagues  in  the  assembly  procured 
the  passage  of  the  Act  of  1727  depriving  that  court  of 
original    jurisdiction.      This,    said    Fitzwilliam,    would 
discourage  prosecutions  for  breaches  of  the  acts  of  trade. 

"For  as   the   judges  of  those   courts  are   men   but   of  mean 
circumstances  and  as  mean  capacities,  so  are  the  juries  more 


EARLY  COURTS  OF  PENNSYLVANIA.      97 

apt  to  be  biased  in  favor  of  those  who  transgress  the  law,  the 
common  people  being  generally  of  opinion  that  those  who 
bring  goods  from  foreign  parts  can  afford  them  better  penny- 
worths than  others  who  import  the  like  commodities  from  Great 
Britain  where  the  duties  and  customs  are  high." 

Moore  added  that  the  magistrates  were  "all  mer- 
chants."^ The  proprietors  addressed  a  counter  petition 
to  the  council  in  favor  of  the  act,  stating  that  they  were 
not  concerned  in  the  controversy  between  Keith  and 
Moore  but  that  the  act  had  been  passed  after  nine  months 
careful  consideration  and  was  not  intended  to  prejudice 
His  Majesty's  service,  that  so  far  as  they  were  informed 
Moore  was  the  first  person  to  attempt  to  introduce 
the  practice  of  bringing  actions  in  the  supreme  court, 
and  that  it  would  prove  a  great  hardship  to  the  inhabit- 
ants living  in  remote  settlements  to  compel  them  to 
attend  court  at  Philadelphia  and  that  the  merchants 
were  frequently  gentlemen  of  the  best  fortune  and 
substance  as  well  as  probity.^  The  act  was  referred 
to  Mr.  Fane,  who  wrote  an  elaborate  opinion  in  which 
he  questioned  whether  original  jurisdiction  was  vested 
in  the  supreme  court  by  the  Act  of  1722  although  there 
were  some  words  that  pointed  that  way. 

"It  is  true  the  judges  of  the  Supreme  Court  in  the  case  of  Mr. 
Moore  have  thought  fit  to  exercise  a  jurisdiction,  but  I  see  no 
great  conclusion  from  thence,  because  courts  of  law  are  ever 
willing,  upon  the  slightest  pretenses,  to  extend  their  juris- 
diction."* 

The  commissioners  for  trade  and  plantations  reported 
adversely  to  the  act  and  it  was  accordingly  disallowed.* 

1  IV  Statutes  at  Large,  425,  430. 

2  IV  Statutes  at  Large,  431. 

3  IV  Statutes  at  Large,  443. 

"  IV  Statutes  at  Large,  421,  449;  III  Colonial  Records,  446, 
November  23,  1731.  The  assembly  stated  that  the  aspersions 
on  the  inferior  courts  were  false  and  scandalous.  Votes  of 
Assemblv,  Vol.  Ill,  168,  169. 


9S      EARLY  COURTS  OF  PENNSYLVANIA. 

Whatever  may  have  been  the  intention  of  the  Act  of 
1722,  it  would  seem  that  the  supreme  court  was  chary 
of  assuming  original  jurisdiction.  Chief  Justice  Tilgh- 
man  in  Commonwealth  v.  Smith^  informs  us  that  prior  to 
17SG  the  court  had,  certainly  for  a  long  time,  exercised  no 
original  jurisdiction  except  in  cases  of  fines  and  common 
recoveries,  which,  though  actions  in  form,  were  in  sub- 
stance no  more  than  mere  conveyances  of  record. 

Two  acts  amending  the  Act  of  1722  were  passed  prior 
to  the  Revolution.  By  the  first  of  these,  the  Act  of 
September  29,  1759,  the  judges  of  the  court  of  common 
pleas  were  appointed  to  hold  the  orphans'  court,  a  duty 
which  had  for  some  time  previously  been  assigned  to 
the  quarter  sessions,  and  the  judges  of  the  latter  court 
were  not  to  sit  in  the  common  pleas,  which  was  to  consist 
of  five  persons.  No  exception  was  taken  to  these  pro- 
visions, which  were  approved,  but  the  proprietors 
strongly  objected  to  another  clause  in  the  act  which 
provided  that  the  judges  of  the  common  pleas,  as  well 
as  the  justices  of  the  supreme  court,  should  hold  their 
commissions  quam  diu  se  bene  gesserint  and  be 
removable  only  on  the  address  of  the  assembly.  The 
committee  of  the  council  were  strongly  against  this  pro- 
vision, not  only  as  limiting  the  charter  rights  of  the 
proprietors,  who  were  therein  permitted  to  nominate 
judges  without  limitation,  but  as  perpetuating  in  the 
seat  of  justice  men  of  secondary  capacity,  except  the 
chief  justice.  It  was  further  stated  that  in  the  other 
colonies  the  judges  held  durante  bene  placita,  and 
it  was  not  expedient  to  make  a  change  in  Pennsylvania 
which  would  confer  no  real  benefit  upon  the  inhabitants 
and  "excite  a  just  jealousy  in  the  other  colonies  by 
seeming  to  extend  advantages  to  this  proprietary 
government,  which   have  been   denied  to  those  under 


'  4    Binney's  Reports,  117  (1811). 


EARLY  COURTS  OF  PEXNSYLVAXIA.      99 

his  majesty's  immediate  care."^  The  act  was  accord- 
ingly disapproved  September  2,  1760. 

Another  amendment  to  the  Act  of  1722  was  adopted, 
by  which  the  number  of  supreme  judges  was  increased 
to  four,  and  the  removal  of  cases  into  the  supreme  court 
in  suits  involving  less  than  fifty  pounds,  except  in  cases 
involving  title  to  land,  was  prohibited  under  penalty, 
in  the  case  of  the  plaintiff,  of  loss  of  costs  and  of  the 
defendant  of  double  costs.  It  was  also  provided  that 
appeals  to  England  should  be  taken  only  on  demurrer 
to  evidence,  bill  of  exceptions  or  writ  of  error.  This 
act  was  allowed  to  become  a  law.^ 

It  will  be  noticed  that  no  jurisdiction  is  conferred 
upon  the  courts  in  matters  of  divorce.  We  have  seen 
that  in  the  Dutch  period  divorce  was  recognized  in 
accordance  with  the  doctrines  of  the  Reformation,  but 
after  the  English  conquest  the  subject  is  hardly  recog- 
nized as  belonging  to  the  domain  of  ordinary  courts. 
In  an  amendment  to  the  Duke  of  York's  Laws  of  1665 
it  is  provided  that  in  cases  of  adultery  the  proceedings 
shall  be  "according  to  the  laws  of  England  which  is  by 
divorce,"^  but  this  does  not  say  more  than  that  a  divorce 
a  mensa  et  thoro,  or  judicial  separation,  would  be  recog- 
nized and  Chancellor  Kent  is  authority  for  the  statement 
that  during  the  colonial  period  no  divorce  took  place 
in  the  colony  of  New  York.''  In  Pennsylvania  the 
"great  law"  of  1682  in  defining  and  punishing  adultery 
provided  that  the  guilty  parties  should  "be  liable  to  a 
Bill  of  Divorcement,  if  required  by  the  grieved  husband 
or   wife"    within   a   year   after   conviction.^     This   was 


•  V  Statutes  at  Large,  462,  722. 

2  May  20,  1767,  VII  Statutes  at  Large,  107. 
^  Charter  and  Laws  of  Pennsylvania,  63. 
■*  Kent's  Commentaries,  Vol.  II,  97. 

*  Charter  and  Laws  of  Pennsylvania,  109. 


100     EARLY  COURTS  OF  PENNSYLVANIA. 

reenacted  in  1693*  and  again  in  1700-  with  a  more 
severe  punishment  for  the  crime.  The  last  act  was 
repealed  by  the  Crown  in  1705  upon  the  advice  of  the 
attorney  general,  Sir  Edward  Northey,  who  pointed 
out  that  "by  this  law  for  adultery  a  bill  of  divorce  is 
allowed  to  the  injured  husband  and  wife,  but  the  divorce 
is  not  explained,  whether  to  be  a  vinculo  matrimoni 
or  only  from  bed  and  board,  as  the  ecclesiastical  laws 
of  England  allow,  which  I  think  ought  to  be  ascer- 
tained."^ The  defect  was  remedied  by  the  Act  of 
January  12,  1705-6,*  which,  in  adultery,  gave  the 
injured  party  a  divorce  from  bed  and  board,  to  be 
granted  on  bill  by  the  governor  or  lieutenant-governor 
for  the  time  being.  This  act  was  allowed  to  become  a 
law.  If  the  governor  exercised  this  power  it  has  escaped 
notice  in  the  minutes  of  the  council,  but  among  the 
records  of  the  court  of  chancery  is  a  bill  filed  by  a  wife 
against  her  husband,  praying  for  a  writ  of  ne  exeat  against 
the  defendant,  until  he  should  enter  security  to  answer 
a  bill  for  divorce.^  The  writ  was  allowed  but  there  is 
no  entry  of  the  final  result  of  the  divorce  proceeding. 
It  would  have  been  strange,  however,  if  the  practice 
of  obtaining  a  divorce  by  act  of  parliament,  which  was 
the  only  means  by  which  the  marriage  bond  could  be 
dissolved  in  England  in  the  eighteenth  century,^  had 
not   been   imitated   in    America,    and,    accordingly,    we 

*  Charter  and  Laws  of  Pennsylvania,  194. 

2  Act  of  November  27,  1700,  II  Statutes  at  Large,  5. 

3  II  Statutes  at  Large,  490. 

*  II  Statutes  at  Large,  180.  By  another  act,  of  the  same  date, 
a  divorce  from  bed  and  board  was  allowed  to  the  first  husband 
or  wife  of  a  bigamist.     II  Statutes  at  Large,  181. 

'  Rawle's  Equity  in  Pennsylvania,  Appendix,  25. 

*  "As  a  matter  of  fact,  for  the  century  and  a  half  during  which 
the  practice  prevailed  perhaps  not  more  than  two  hundred 
such  separations  were  granted."  Howard,  Matrimonial  Insti- 
tutions, Vol.  II,  106. 


EARLY  COURTS  OF  PEXXSYLVAXIA.     101 

find  a  bill  passed  February  IS,  1709/  to  dissolve  the 
marriage  between  Curtis  Grubb  and  Ann  Few,  liis  wife, 
and  to  enable  him  to  marry  again.  Before  approving 
this  bill  Governor  John  Penn  sent  to  the  assembly  for 
the  papers  and  proofs  in  support  of  the  charges  of 
adultery  and  bigamy  made  against  the  wife  and  suggested 
several  amendments  to  the  act.^  When  the  laws  of 
1769  were  submitted  to  the  privy  council,  this  act  was 
referred  by  the  committee  for  plantation  affairs  to  Mr. 
Jackson,  their  counsel,  who  gave  it  as  his  opinion  that 
the  assembly  had  properly  exercised  a  po^\'er  which 
he  was  inclined  to  think  they  ought  to  be  entrusted 
with,  but,  as  the  matter  was  very  important,  he  advised 
that  the  attorney  and  solicitor- general  be  consulted.^ 
The  point  was  so  referred  but  no  reply  was  received  and 
the  act  became  a  law"  by  lapse  of  time.  The  same 
question  arose  three  years  later  when  a  bill  was  passed 
to  divorce  George  Keehmle  from  his  wife  Elizabeth, 
who  had  been  tried,  in  the  supreme  court,  for  adultery 
and  convicted.*  This  time  the  committee  on  plantations 
advised  that  the  king  should  refuse  to  confirm  the  act 
and  should  give  "such  directions  as  shall  have  the  effect 
to  prevent  the  laws  passed  by  the  legislature  of  Pennsyl- 
vania, becoming  a  precedent  and  example  for  the 
exercise  of  like  powers  in  other  colonies."  The  act 
was  accordingly  declared  void  April  27,  1773,^  and  in  the 
same  year  a  circular  letter  sent  to  the  provincial  governors 
commanding  them  not  to  give  their  assent  to  any  bill 
"for  the   divorce   of  persons   joined  together  in    Holy 


»  VII  Statutes  at  Large,  263. 

2  IX  Colonial  Records,  564,  566,  567,  580. 

3  VII  Statutes  at  Large,  626. 

^  VIII  Statutes  at  Large,  243. 

*  VIII   Statutes  at  Large,  597,   600;    Votes  of  Assembly  of 
Pennsylvania,  Vol.  VI,  485,  488;  X  Colonial  Records,  104. 


102     EARLY  COURTS  OF  PENNSYLVANIA. 

Marriage."^  Prior  to  this  the  governor  had  refused 
his  consent  to  a  bill  "making  void  the  pretended  mar- 
riage of  Rebecca  Vanakin  with  a  certain  John  Martin. "^ 
No  more  divorce  acts  were  passed  until  1779  when 
James  Martin  was  divorced  from  his  wife  Elizabeth, 
who  had  eloped  with  Sergeant  Havell  of  the  British 
Army  "taking  with  her  the  said  James  Martin's  effects, 
and  leaving  him  to  pay  sundry  debts  of  her  contracting."^ 
From  this  time  the  number  of  special  acts  granting 
divorces  increases.  Ten  were  granted  prior  to  the  Act 
of  September  19,  1785,*  which  conferred  jurisdiction 
in  divorce  upon  the  supreme  court  and  authorized 
absolute  divorces  in  the  cases  of  impotency  at  time  of 
contract,  bigamy,  adultery  and  willful  and  malicious 
desertion  for  four  years,  as  well  as  divorces  from  bed 
and  board  in  other  cases,  an  extremely  liberal  law  for 
that  day  but  soon  superseded  by  legislation  even  more 
liberal.  Private  divorce  acts,  however,  were  passed  by 
the  legislature  until  forbidden  by  the  constitution  of 
1874.5 

An  examination  of  the  judges'  commissions,  in  the 
archives,  will  show  that  the  practice,  prior  to  the  Revo- 
lution, was  to  issue  to  the  justices  of  the  peace  of  each 
county  a  joint  commission  authorizing  three  or  more 
of  them  to  hold  the  quarter  sessions,  and  likewise 
assigning  any  three  or  more  of  them  to  hold  the  court 
of  common  pleas.     Separate  commissions  were  issued 


'  November  24,  1773,  O'Callahan's  Documents  relative  to 
the  Colonial  History  of  New  York,  Vol.  VIII,  402;  New  Jersey 
Archives,  Vol.  X,  411,  412. 

2  ::  Colonial  Records,  40,  53,  54. 

3  IX  Statutes  at  Large,  433. 
*  XII  Statutes  at  Large,  94. 

"  Eighteen  private  acts  were  passed  in  1873.  For  the  present 
law  see  the  Act  of  March  13,  1815,  6  Smith's  Laws  of  Pennsyl- 
vania, 286;  Pepper  &  Lewis's  Digest  of  Decisions,  Vol.  V, 
col.  7075;   Stewart's  Purdon's  Digest,  Vol.  I,  1230. 


EARLY  COURTS  OF  PENNSYLVANIA.     103 

to  the  chief  justice  and  justices  of  the  supreme  court, 
and  a  joint  commission  of  oyer  and  terminer.^  In  1717 
Governor  Keith  questioned  the  propriety  of  issuing 
commissions  to  the  judges  in  the  name  of  the  proprietor 
instead  of  the  king,  since,  even  if  the  charter  could  be 
so  construed,  the  king  could  not  grant  away  any  part 
of  his  prerogative  inseparable  from  the  sovereignty. 
The  council  replied  that  the  difficulty  arose  from  not 
distinguishing  fully  "between  the  state  of  England  and 
that  of  new  colonies  made  without  the  Verge  of  the 
ancient  Laws  of  that  kingdom." 

"That  these  American  Lands  being  new  Discoveries  of  Tracts 
long  settled  by  their  native  inhabitants  the  indians  who  were 
under  no  subjection  to  nor  had  any  knowledge  of  the  laws 
of  England;  those  laws,  whenever  they  come  to  reach  these 
Lands,  must  by  some  Regular  method  be  extended  to  them, 
for  they  cannot  be  supposed  of  their  own  nature  to  accompany 
the  people  into  these  Tracts  in  America,  any  more  than  they 
would  the  same  persons  going  into  any  other  foreign  part  of 
the  world." 

And  further,  that  the  royal  prerogative  as  exercised 
in  England  could  "no  more  be  understood  to  accompany 
the  sovereignty  than  all  the  other  laws  can."^  Keith 
yielded  to  the  opinion  of  the  council.  After  the  death 
of  Penn,  judicial  commissions  were  issued  in  the  name 
of  the  king  and  attested  by  the  governor,  by  authority 
of  the  proprietor,  while  minor  officials  were  commissioned 
in  the  name  of  the  proprietors  alone. ^ 

In  these  commissions  the  time  for  which  they  are  to 
run  is  not  stated.  The  commission  of  the  peace  seems 
to  have  been  filled  up  and  renewed  at  first  yearly,  but 
later  at  longer  intervals  of  irregular  length,  and  it  was 

'  See  examples  in  VIII  Pennsylvania  Archives  (3d  Series),  2.3. 
2  III  Colonial  Records,  23,  February  14,  1717. 
'  Charter  and  Laws  of  Pennsylvania,  382,  385;    VIII  and  IX 
Pennsylvania  Archives  (3d  Series),  passim. 


104     EARLY  COURTS  OF  PENNSYLVANIA. 

the  custom  for  governors  to  renew  the  commissions  at, 
or  soon  after,  their  accession  to  the  government.^  At 
these  various  renewals  it  may  be  presumed  that  un- 
desirable members  were  dropped.  The  justices  of  the 
supreme  court  also  were  recommissioned  from  time 
to  time,  but  would  seem  usually  to  have  held  their 
offices  until  death  or  resignation.  The  real  trouble  seems 
to  have  been  to  persuade  men  of  ability  to  fill  the  thank- 
less positions.  The  assembly  neglected  the  matter  of 
compensation,  and  on  Penn's  second  visit  he  seems  to 
have  himself  promised  the  chief  justice  one  hundred 
pounds  a  year.  In  170G  the  salary  of  the  chief  justice 
is  said  to  have  been  in  arrears,  and  it  was  proposed  that 
the  assembly  should  be  asked  to  make  some  provision 
for  the  judges,  as  it  was  unfair  to  throw  this  expense 
on  the  proprietor.  Roger  Mompesson,  judge  of  vice 
admiralty,  who  was  appointed  to  the  office  soon  after- 
wards, accepted,  "though  the  present  encouragement 
be  but  very  slender  and  no  way  inviting."^  The  per- 
quisites of  the  court  were  the  fees  allowed  by  the  fee  bill. 
Those  established  by  the  Act  of  March  30,  1723,^  were 
four  shillings  for  every  allocatur  signed,  six  shillings 
for  every  case  brought  into  court  by  certiorari,  taking 
bail  two  shillings,  every  judgment  six  shillings,  every 
rule  two  shillings.  As  late  as  1772  the  salary  of  the 
chief  justice  of  the   supreme   court   was  two   hundred 


^  So,  also,  on  the  accession  of  a  new  sovereign,  III  Colonial 
Records,  298,  September  1,  1727.  Chronological  lists  of  the 
judges  of  the  supreme  court  and  of  the  court  of  common  pleas 
and  the  orphans'  court  of  Philadelphia  County  will  be  found 
in  John  H.  Martin's  Bench  &  Bar  of  Philadelphia  (1883). 
Another  list,  slightly  different,  will  be  found  in  IX  Pennsylvania 
Archives  (2d  Series),  629. 

2  II  Cblonial  Records,  247,  April  17,  1706. 

3  III  Statutes  at  Large,  369;  same  in  Act  of  August  22,  1752; 
V  Statutes  at  Large,  161. 


EARLY  COURTS  OF  PENNSYLVANIA.  105 

pounds,  and  of  the  associate  justices  one  hundred  and 
fifty  pounds.^ 

In  the  county  courts  the  justices  received  trifling 
fees  for  various  services,  and  the  expenses  of  the  sitting 
of  the  court  were  paid  by  the  county. 

The  Act  of  January  28,  1777,-  provided  that  one 
justice  should  be  appointed  to  preside  in  the  respective 
courts  of  common  pleas,  quarter  sessions  and  orphans' 
court,  but  the  honorary  office  of  president  of  the  court 
had  existed  from  the  earliest  times  and  was  applied 
to  the  first  in  the  commission,  or  senior  justice,  the 
same  person  being,  in  many  cases,  for  a  long  series  of 
years  first  in  the  commission.^  The  city  of  Philadelphia, 
under  its  charter,  had  a  criminal  court  of  its  own, 
presided  over  by  the  city  recorder,  usually  a  lawyer, 
assisted  by  the  aldermen.  Those  of  the  aldermen  who 
were  in  the  commission  of  the  peace  also  sat  in  the 
county  courts. 

By  an  Act  of  January  12,  1705,^  a  special  court  was 
established  for  the  trial  of  negroes,  consisting  of  two 
judges,  specially  commissioned  by  the  governor,  in  the 
respective  counties,  assisted  by  six  freemen  of  the 
county;  the  purpose  being  to  obtain  speedy  trials  and 
summary  punishment  for  negro  offenders,  whose  crimes 
excited  some  alarm  in  the  province.  This  act  was 
repealed  in  1780. 

By  an  Act  of  May  28,  1715,^  the  justices  of  the  peace 
were  given  jurisdiction  to  try,  and  finally  determine 
all  suits  for  debts  and  demands  under  forty  shillings. 


'  X  Colonial  Records,  53,  September  19,  1772. 

2  IX  Statutes  at  Large,  29. 

'  Justice  Moll  is  described  as  "president  of  the  court  at  New 
Castle."  Records  of  Court  at  New  Castle,  496;  see,  also,  I 
Colonial  Records,  18,  23,  3  mo.  1683. 

*  II  Statutes  at  Large,  233. 

^  III  Statutes  at  Large,  63. 


100     EARLY  COURTS  OF  PENNSYLVANIA. 

and  issue  executions  on  their  judgments,  through  the 
constable,  by  levy  on  the  goods  or  attachment  of  the 
body  of  the  defendant.  The  court  of  the  city  of  Phila- 
delphia for  the  collection  of  small  debts  was  abolished, 
and  it  was  further  enacted  that  no  court  of  the  province 
should  have  jurisdiction  of  debts  under  said  amount, 
but  that  the  act  should  be  the  exclusive  remedy.  Debts 
for  rents  or  contracts  relating  to  real  estate  were  ex- 
cluded from  this  jurisdiction.  The  act  was  allowed 
to  become  a  law,  and  is  the  foundation  of  the  present 
civil  jurisdiction  of  the  justices  of  the  peace  as  amplified 
by  the  Act  of  March  20,  1810,^  and  subsequent  acts. 

Briefly  summarized,  the  administration  of  justice 
at  the  beginning  of  the  Revolution  was  vested  in  the 
county  courts  of  quarter  sessions,  common  pleas  and 
orphans'  courts,  presided  over  by  justices  of  the  peace, 
commissioned  by  the  governor,  none  of  whom,  prior 
to  the  Revolution,  appears  to  have  been  learned  in  the 
law.  There  was  a  supreme  provincial  court  consisting 
at  first  of  five,  later  of  three  and  finally  of  four  judges, 
of  whom  the  chief  justice  was  generally  a  lawyer  or  at 
least  possessed  of  some  legal  experience.  This  court 
had  a  general  appellate  jurisdiction,  and  original  criminal 
jurisdiction  in  capital  cases.  The  original  jurisdiction 
in  civil  cases  does  not  seem  to  have  been  well  defined 
but  was  assumed  to  exist  in  cases  of  fines  and  common 
recoveries.  Where  a  case  appealed  involved  issues  of 
fact,  such  issues  were  tried  in  the  supreme  court  before 
a  jury.  The  court  sat  twice  a  year  in  Philadelphia  and 
went  on  circuit  to  the  other  counties  when  required. 
From  this  court  an  appeal  could,  in  certain  cases,  be 
taken  to  the  king  in  council.  There  were  special  courts, 
such  as  that  of  the  corporation  of  Philadelphia  and  that 
for  the  trial  of  negroes,  and,  finally,  the  court  of  vice 
admiralty  under  the  Crown. 

'  P.  L.  208. 


EARLY  COURTS  OF  PENNSYLVANIA.     107 

As  for  the  judges  of  the  respective  courts,  to  mention 
them  all  would  be  to  give  a  biographical  history  of  the 
province.  Nearly  every  man  of  distinction  at  that  day 
filled  at  some  time  a  place  on  the  bench.  It  was,  in 
the  lower  magistracy,  the  stepping  stone  to  higher 
office,  and,  with  the  higher  officials,  part  of  the  burden 
and  duty  of  government.  It  is  interesting  to  note  that 
Benjamin  Franklin  sat  for  a  short  time  in  the  common 
pleas,  but  was  wise  enough  to  see  that  the  position 
required  a  special  knowledge  that  he  did  not  possess 
and  was  not  sufficiently  interested  to  acquire.^  Except 
the  recorders  of  Philadelphia,  few,  if  any,  of  the  judges 
of  the  lower  courts  had  any  legal  training,  beyond  such 
as  they  acquired  in  the  exercise  of  their  office.  In  the 
supreme  court,  David  Lloyd,  chief  justice  from  1717  to 
1731,  had  a  reputation  in  his  day  as  an  able  lawyer, 
but  in  history  he  is  chiefly  conspicuous  as  the  spokes- 
man of  the  anti-proprietary  party  in  the  assembly,  and, 
as  we  have  seen,  was  actively  concerned  in  the  develop- 
ment of  the  judicial  system  of  the  province.-  James 
Logan,  his  one-time  enemy,  who  succeeded  him  in  the 
office,  was  the  most  conspicuous  figure  in  the  province 
in  his  time,  excepting  only  Penn  himself.  He  was  not 
a  lawyer,  but  was  talented  and  well  educated,  and  had 
sat  in  the  quarter  sessions  and  common  pleas  of  Phila- 
delphia for  years.  John  Kinsey,  who  became  chief 
justice  in  1743,  was  a  lawyer  in  extensive  practice,  and 
the  governor  considered  it  a  matter  of  congratulation 
that  one  of  the  legal  profession  had  consented  to  take 


•Benjamin  Franklin's  Autobiography,  chapter  ix.  A  bill 
of  exceptions  signed  by  Frankhn  with  the  other  judges  of  the 
common  pleas  is  printed  in  Appendix  B,Vol.  I,  of  the  Forum, 
by  David  Paul  Brown. 

2  David  Lloyd  was  born  in  1656  in  Montgomery  County, 
North  Wales,  and  was  appointed  attorney-general  by  Penn  in 
1686.  At  the  time  of  his  death  in  1731  he  resided  at  Chester. 
He  left  no  descendants. 


lOS     EARLY  COURTS  OF  PENNSYLVANIA. 

the  position.  At  the  time  when  Dallas's  Reports  begin, 
William  Allen  presided.  He  was  said  to  be  the  richest 
citizen  in  the  province  and  was  a  son-in-law  of  the  dis- 
tinguished lawyer,  Andrew  Hamilton.  Educated  in 
London,  he  had  filled  various  offices,  including  those  of 
mayor,  recorder  of  Philadelphia  and  judge  of  the  com- 
mon pleas,  and  was  also  one  of  the  original  trustees 
of  the  College  of  Philadelphia.^  In  1774  Benjamin  Chew, 
who  had  studied  law  in  Hamilton's  office  and  also  in 
the  Middle  Temple,  was  appointed  chief  justice.  During 
the  Revolution  he  was  displaced,  but  after  spending 
fourteen  years  in  retirement  was  made  president  of  the 
high  court  of  errors  and  appeals  in  1791. 

In  the  early  days  of  the  settlement  there  was  no 
public  building  in  the  capital  where  court  could  be  held, 
and,  as  time  went  on,  the  inconvenience  of  this  state 
of  affairs  became  manifest.  In  1705,  the  grand  jury 
of  Philadelphia  Covmty  recommended  the  levy  of  a  tax 
to  build  a  courthouse  "where  the  bell  now  stands."^ 
This  was  at  Second  and  Market  streets  where  the  town 
bell,  erected  on  a  mast,  gave  notice  to  the  citizens  of 
important  gatherings.  Penn  had  intended  that  the 
public  offices  should  be  placed  in  Centre  square,  but 
that  spot  was  then  far  distant  from  the  centre  of  popu- 
lation. There  was  some  dispute  between  the  city  and 
county  as  to  the  division  of  the  expense  of  erecting  the 
proposed  building  and  the  matter  was  before  the  council 
in  1708,  when  Justices  Growdon  and  Pidgeon  stated  that 
"it  is  not  only  scandalous  to  both  town  and  county, 
but  even  to  the  whole  Govmt.  that  while  every  other 
county  has  their  County  house.  Here  in  the  Capital  town 

'  It  is  said  that  Chief  Justice  Allen  refused  to  issue  Writs 
of  Assistance  to  the  customs  officers  at  the  time  of  the  memorable 
agitation  on  that  subject.     Quincy's  Reports  (Mass.),  509. 

2  Watson's  Annals  of  Philadelphia  (1850),  Vol.  I,  350;  Sharp  & 
Westcott's  History  of  Philadelphia,  Vol.  II,  857,  Vol.  Ill, 
page  1819. 


EARLY  COURTS  OF  PENXSYLVAxNIA.  109 

of  the  Govmt.  the  Magistrates  are  obliged  to  hold  court 
in  an  ale  house." ^  It  was  finally  agreed  that  if  the 
county  would  build  some  necessary  bridges,  the  town 
would  build  the  courthouse.  Accordingly  a  small, 
quaint  two-story  structure  was  built  at  Second  and 
Market  streets,  of  which  the  municipality  was  then  very 
proud  and  which  served  all  the  purposes  of  a  town  hall. 
Here  the  assembly  met  until  the  erection  of  the  state- 
house  and  here  elections  were  held,  while  from  the 
balcony  the  inaugural  addresses  of  the  governors  were 
delivered.^  Near  by  were  the  stocks  and  the  pillory. 
Besides  the  city  and  county  courts,  the  supreme  court 
also  sat  there  twice  a  year.  When  the  statehouse  was 
finished  the  supreme  court  moved  to  that  building.  In 
1787  the  erection  of  a  new  courthouse  was  commenced 
at  Sixth  and  Chestnut  streets,  upon  land  devoted  to 
that  use  by  the  assembly  in  17(32,^  but  while  Phila- 
delphia was  the  capital,  the  building  was  used  by  the 
Federal  Government.  When  the  capital  was  removed 
to  Washington  the  courts  took  possession  of  the  build- 
ing long  intended  for  their  use.  The  old  courthouse 
was  ruthlessly  torn  down  in  1837,  an  extraordinary  act 
of  vandalism  even  for  those  times. 

In  1698  a  volume  was  printed  in  London,  entitled,  "A 
historical  and  geographical  account  of  the  province  of 
Pennsylvania  and  of  the  West  New  Jersey  in  America, 
etc.,  by  Gabriel  Thomas  who  resided  there  about  fifteen 
years."  Regarding  two  of  the  learned  professions  he 
writes:  "Of  lawyers  and  physicians  I  shall  say  nothing, 

*  II  Colonial  Records,  425,  April  5,  1708.  The  building  was 
finished  in   1710. 

^  The  Pennsylvania  Gazette  of  December  14,  1769,  states 
that  Governor  John  Penn's  commission  was  read  from  the 
Court  House  in  the  presence  of  a  concourse  of  people.  An 
election  riot  took  place  on  the  staircase  leading  to  the  balcony 
in  1742. 

'Act  of  February  12,  1762;    VI  Statutes  at  Large,  177. 


no     EARLY  COURTS  OF  PENNSYLVANIA. 

because  the -country  is  very  peaceable  and  healthy; 
long  may  it  continue  so  and  never  have  occasion  for  the 
tongue  of  one  and  the  pen  of  the  other,  both  equally 
destructive  to  men's  estates  and  lives;  besides,  forsooth, 
they  hangman-like,  have  a  license  to  murder  and  make 
mischief."  Such  views,  so  far,  at  least,  as  our  pro- 
fession is  concerned,  were  not  uncommon  among  the  early 
colonists.  Many  of  them  belonged  to  persecuted  reli- 
gious sects  whose  experiences  with  the  law  in  their  former 
homes  were  not  such  as  to  inspire  pleasant  sentiments 
toward  the  courts  or  their  officers.  Few  were  drawn 
from  that  class  of  society  which,  through  birth  or  edu- 
cation, could  be  expected  to  feel  or  display  any  interest 
in  professional  learning,  while  those  few  who  might  have 
done  so,  were  enthusiasts,  filled  with  Utopian  theories  of 
government,  or  utilitarians,  who  regarded  the  lawyer  as  an 
"unproductive  consumer."  Nor  was  there  anything  to 
tempt  an  ambitious  barrister  to  desert  Westminster  Hall 
for  a  hut  in  the  wilderness.  The  colonists  were  usually 
poor,  their  possessions  half-cleared  farms,  commerce 
was  controlled  by  the  mother  country,  fees  were  neces- 
sarily small,  and  the  only  road  to  professional  distinc- 
tion and  wealth  was  through  crown  offices  or  successful 
land  speculation.  However,  since  courts  without  coun- 
sel are  as  Hamlet  without  Hamlet,  there  are  evidences 
that  even  in  the  earliest  days  there  were  men  willing 
to  undertake  the  conduct  of  cases. 

The  early  records  of  the  court  of  assizes  of  New  York 
show  unmistakably  the  activity  of  certain  men  who 
appear  in  so  many  cases  that  they  must  have  been 
regarded  as   regular  practitioners.^     In  the   records   of 


1  There  are  attorneys  mentioned  in  the  Records  of  the  Court 
of  New  Amsterdam,  Vol.  I,  190.  Peter  Alrichs,  writing  to 
Governor  Stuyvesant  March  30,  1G5S,  says:  "I  have  also  to 
pay  the  attorney  Schelluyn  for  salary  earned  by  him  in  a  suit 
against  Dirck  CorneHssen  Heunich."  VII  Pennsylvania  Archives 
(2d  Series),  528. 


EARLY  COURTS  OF  PENNSYLVANIA.     Ill 

the  court  of  New  Castle  the  following  minute  appears 
under  date  of  November  7,   1676: — 

"Uppon  the  Petition  of  Thomas  Spry  desiering  that  hee  might 
bee  admitted  to  plead  some  Peoples  cases  in  Court  etc.  the 
Worppll  Court  have  granted  him  License  So  long  as  the  Petitioner 
Behaves  himself  well  and  carry's  hiinself  answerable  thereunto."' 

Evidently  something  must  have  happened  in  1677 
to  disgust  the  governor  with  the  ways  of  the  law,  for 
on  May  twenty-ninth  of  that  year  the  governor  and 
council  "reso  ved  and  ordered  that  pleading  atturneys 
bee  no  Longer  allowed  to  practice  in  ye  Government 
but  for  ye  depending  Causes,"  which  order  was  read 
in  open  court  at  Upland  and  New  Castle.-  Prior  to  the 
receipt  of  this  order  at  New  Castle  John  Mathews  peti- 
tioned to  be  admitted  as  an  attorney.  The  record 
states : — 

"The  Court  did  admit  the  Peticoni"  as  an  attorney  and  was 
swome  accordingly:  You  doe  sware  by  the  Everliving  God  that 
you  will  according  to  Lawe  truely  plead  &  manadge  all  cases 
wherein  you  shall  bee  Imployed  by  Yo^  Clyant  that  you  will  not 
exact  in  yo"^  fees  above  what  shall  bee  allowed  by  the  Governo'' 
&  Court  That  you  will  not  in  one  and  the  same  action  take 
fees  both  of  the  PI*  and  def*  That  you  will  not  take  any  apparent 
unjust  case  in  hand,  but  in  all  Respects  behave  yo^selve  as  all 
Attorneys  are  obliged  to  by  the  Lawes  of  this  governmt"* 

Subsequently  it  was  ordered  that — 

"The  Cr\'er  of  the  Court  is  to  have  for  every  Attorney  that 
shall  be  admitted  &  swome  in  Court  twelve  Gilders  or  halfe 
a  bever."^ 

'  Records  of  the  Court  of  New  Castle,  9.  Spry  was  also  a 
doctor.  In  the  same  year  he  got  into  trouble  by  assaulting 
Captain  Collier  with  a  cane  while  "overcome  wth  drinke"  and 
was  fined  two  hundred  guilders  by  the  court.  Records  of  Court 
of  New  Castle,  103. 

*  Hazard's  Annals  of  Pennsylvania,  438;  Records  of  the  Court 
of  New  Castle,  111;    Records  of  Court  at  Upland,  82. 

»  Records  of  the  Court  of  New  Castle,  83. 

*  Records  of  the  Court  of  New  Castle.  101. 


112     EARLY  COURTS  OF  PENNSYLVANIA. 

The  crier  no  longer  gets  a  beaver,  but  there  is  still  a 
fee  to  be  paid  on  admission  by  those  prisoners  of  hope 
who  have  satisfied  the  examiners. 

It  was  the  dream  of  Penn  that  in  his  colony  the  laws 
should  be  so  plain  and  the  pleadings  so  simple  that  every 
person  could  plead  his  own  cause,  and  it  was  so  provided 
in  his  laws  agreed  upon  in  England  and  embodied  in  the 
Act  of  March  10,  1()S3.  His  paternalism,  and  the 
peace-loving  tendencies  of  his  more  sincere  followers, 
tended  to  discourage  skilled  advocacy.  In  1685  and 
again  in  1686  the  council  promulgated  laws  against 
lawyers'  fees.     That  of  1686  is  as  follows: — 

"For  the  a  Voyding  of  to  frequent  Clamours  and  manifest 
Inconveniences  wch  usually  attend  mercenary  pleadings  in 
Civill  Causes,  It  is  Enacted  by  ye  authority  aforesaid,  that 
noe  persons  shall  plead  in  any  Civill  Causes  of  another,  in  any 
Court  whatsoever  within  this  Province  and  Territories,  before 
he  be  Solemnlye  attested  in  open  Court,  that  he  neither  directly 
or  Indirectly  hath  in  any  wise  taken  or  received,  or  will  take  or 
receive  to  his  use  or  benefit,  any  reward  whatsoever  for  his  soe 
pleading,  under  ye  penalty  of  5  lb.  if  the  Contrary  be  made 
appear."* 

Neither  of  these  acts,  however,  passed  the  assembly. 

It  soon  became  evident  that  lawyers  could  not,  or 
would  not,  be  dispensed  with,  and  in  1686  David  Lloyd 
was  dispatched  by  the  proprietor  to  Pennsylvania  with 
a  commission  to  act  as  attorney-general  of  the  province. 
The  Acts  of  1710  and  1715,  for  establishing  the  courts, 
had  provisions  for  the  admission  of  attorneys,  as  also 
the  Act  of  May  22,  1722,  which  finally  became  a  law, 
and  which  provided  "that  there  may  be  a  competent 


>  Charter  and  Laws,  507;  I  Colonial  Records  123,  2,  2  mo. 
1686.  This  was  not  a  new  idea,  as  Massachusetts  in  1641  and 
Virginia  in  1645  had  attempted  by  legislation  to  prevent  attor- 
neys from  pleading  for  remuneration.  Baldwin  on  Constitu- 
tional Law  in  Two  Centuries'  Growth  of  American  Law,  14; 
see  also,  II  Connecticut  Colonial  Records,  59. 


EARLY  COURTS  OF  PENNSYLVANIA.     HS 

number  of  persons  of  an  honest  disposition  and  learned 
in  the  law,  admitted  by  the  justices  of  the  said  respective 
courts,  to  practise  as  attorneys  there."  In  the  Act  of 
March  30,  1722-23,^  for  regulating  official  fees,  the 
attorney's  oath  is  prescribed  in  a  form  very  similar  to 
that  used  at  the  present  day:  "Thou  shalt  behave  thyself 
in  the  office  of  attorney,  within  the  court  to  the  best  of 
thy  learning  and  ability,  and  with  all  good  fidelity,  as 
well  to  the  court  as  to  the  client.  Thou  shalt  use  no 
falsehood,  nor  delay  any  person's  cause  for  lucre  or 
malice." 

Even  before  this  a  miniature  bar  had  sprung  up 
among  those  active  in  public  affairs,  amiong  whom  were 
Abraham  Mann  and  John  White,  members  of  the 
assembly,  and  Patrick  Robinson,  clerk  of  the  court, 
and  afterwards  a  member  of  the  provincial  council.  In 
1683  John  White  was  appointed  attorney-general  to 
try  a  case  against  counterfeiters,  and  in  1685  Samuel 
Hersent  was  appointed  to  this  office.  The  two  men  w^ho 
were  most  active  during  the  earliest  period  were  David 
Lloyd  and  John  Moore.  The  latter,  who  had  emigrated 
to  Pennsylvania  from  South  Carolina  prior  to  1696,  was 
appointed  advocate  of  the  court  of  admiralty  by  Colonel 
Quarry,  and  was  afterwards  attorney-general.  As  the 
province  grew  and  prospered  others  came  in,  and  in  the 
early  part  of  the  eighteenth  century  there  was  a  consider- 
able influx' of  educated  lawyers.  The  natural  result  was 
greater  precision  in  the  pleadings  and  closer  adherence 
to  English  forms  and  practice.  Robert  Assheton,  who 
filled  the  office  of  prothonotary  from  1701  to  1727,  as 
well  as  that  of  associate  justice  of  the  supreme  court, 
was  a  trained  lawyer;  from  his  time  the  indictments  were 
scientifically  prepared,  and  in  fact  all  the  clerical  work 
of  the  court    offices  improved.      Nevertheless,  the  bar 

'  III  Statutes  at  Large,  379. 


114  EARLY  COURTS  OF  PENNSYLVANIA. 

must  have  been  a  small  and  select  body,  since  there 
are  recorded  accusations  of  attempts  to  monopolize  it. 
In  1708^  a  petition  was  read  in  the  council  from  one 
James  Heaton — 

"representing  that  he  had  been  sued  in  an  Action  of  Trover  and 
Conversion,  in  the  County  of  Bucks,  by  J.  Growdon,  yt  he  had 
procured  a  writt  of  Error,  by  which  the  cause  is  to  be  brought 
before  the  Provincial  Judges,  in  the  said  County,  the  14th  of 
this  Instant;  that  in  the  meantime  the  said  Jos.  Growdon  arrested 
him  in  Philadia.  on  the  same  account  in  an  Action  to  which  he 
must  answer  at  the  County  Court  in  Philadia.,  on  the  15th 
Instant,  wch.  two  several  Courts  coming  so  near  together  la  yes 
the  Petitr.  under  great  hardships;  he  also  represents  that  his 
antagonist  himself  is  Judge  of  the  Provincial  Court,  and  further 
that  he  has  retained  all  the  Lawyers  in  the  County  (that  have 
leave  to  plead,)  against  him;  Whereupon  he  prays  that  the  Govr. 
would  be  pleased  to  appoint  an  Impartial  Judge  to  hear  his 
cause,  and  would  either  assign  him  Counsel,  or  so  ascertain  the 
Provincial  Court,  that  if  he  be  at  the  Charge  of  procuring  some 
from  New  York,  he  may  not  be  disappointed. 

"Upon  wch.  Jos.  Growdon  himself  being  present,  answer'd  that 
his  action  in  Bucks,  and  that  in  this  County,  are  different;  that 
he  never  retained  more  than  one  Counsell,  viz:  John  Moore, 
in  this  cause,  but  that  he  not  being  able  to  attend,  procured 
another  to  act  for  him;  by  which  means  without  any  design  of 
his,  two  became  Concerned  in  it,  that  it  being  impracticable 
that  a  man  should  Judge  in  his  own  cause:  that  part  of  the 
Petition  was  altogether  needless." 

It  was  resolved  that  the  petitioner  be  left  to  find  his 
own  counsel,  and  Yeates,  the  second  judge,  was  assigned 
to  hear  the  case. 

In  the  following  year  Francis  Daniel  Pastorius  and 
Johannes  Jawert  petitioned  the  council  against  pro- 
ceedings in  ejectment  brought  by  one  Sprogel  to  recover 
the  estates  of  the  Frankfort  Company,  an  association 
of  German  purchasers  of  land,  averring  that  Sprogel 
as  part  of  his  "abominable  plot  did  fee  all  the  known 

>  II  Colonial  Records,  423,  April  2,  1708. 


EARLY  COURTS  OF  PENNSYLVANIA.     115 

attorneys  or  lawyers  of  this  province  either  to  speak  for 
him  or  to  be  silent  in  court,  in  order  to  deprive  the  peti- 
tioners of  all  advice  in  law."^  Upon  examining  the  peti- 
tioners in  the  council  David  Lloyd  was  declared  "the 
principal  agent  and  contriver  of  the  whole,"  and  steps 
were  taken  to  protect  the  purchasers.  The  case  is 
reported  in  Pennypacker's  Colonial  Cases  with  an  account 
by  Pastorius  of  the  whole  curious  transaction. - 

In  Lyie  v.  Richards^  Chief  Justice  Tilghman  remarks 
that  there  were  few  lawyers  of  eminence  in  the  province 
prior  to  Tench  Francis,  although  there  were  never 
wanting  strong  minds  well  able  to  conduct  the  business 
of  the  courts,  and  the  fact  that  the  leading  lawyers  of 
the  following  generation  received  their  training  in  the 
Inns  of  Court  led  them  perhaps  to  look  down  on  their 
predecessors,  some  of  whom  were  in  extensive  practice 
that  included  the  neighboring  colonies.  Disparaging 
remarks  by  contemporaries  are  not  infrequent.  Secre- 
tary Richard  Peters,  writing  in  1749  to  the  proprietors 
says  of  the  bar  in  general:  "All  of  whom  except  Francis 
and  Moland  are  persons  of  no  knowledge,  and,  I  had 
almost  said,  of  no  principle."'*  One  name,  however, 
stands  at  the  head  of  the  early  bar,  that  of  the  brilliant 
Andrew  Hamilton.     The  history  of  Hamilton  is  worth 


'  II  Colonial  Records,  447,  March  1,  1708-9. 

2  Heather  V.  Frankfort  Co.,  Pennypacker's  Colonial  Cases,  142; 
II  Colonial  Records,  447,  March  1,  1708-9.  That  the  "corner- 
ing" of  the  bar  was  not  a  new  experiment  would  appear  from 
an    incident    mentioned    by    Barrington    in    his    "Observations 

on  the  Statutes,"  page  294n.     "There  is  also a  petition  of 

Robert  Pickerel!,  exhibited  to  the  king  in  parliament  the  second 
year  of  Richard  the  Second;  by  which  he  complains  that 
Alice  Ferrers  had  retained  all  the  advocates  in  Westminster 
Hall,  so  that  he  could  have  no  advice;  'si  il  ne  donneroit  si 
grande  summe  d'or,  quil  ne  poit  attainder.'  " 

*  9  Sergeant  &  Rawle's  Reports,  322  (1823). 

*  Watson's  Annals  of  Philadelphia  (1850),  Vol.  I,  316. 


116     EARLY  COURTS  OF  PENNSYLVANIA. 

noting,  as  he  is  the  only  American  lawyer  of  his  genera- 
tion that  enjoyed  an  international  reputation.  A  native 
of  Scotland,  he  first  taught  school  and  then  practiced 
law  in  Maryland,  from  whence  he  removed  to  Phila- 
delphia, about  1715,  having  been  retained  to  represent 
the  proprietary  interests.  In  1717  he  became  attorney- 
general  and  was  active  in  the  litigation  over  the  Mary- 
land boundary.  He  also  appeared  in  the  high  court  of 
chancery  for  the  young  proprietors,  in  the  contest  over 
Penn's  will,^  having  been  called  to  the  English  bar  in 
1712.  The  most  interesting  personal  episode  in  his 
career  was  the  part  he  took  in  the  erection  of  Independ- 
ence Hall,  which  was  built  from  plans  prepared  by  him 
and  under  his  personal  supervision.  To  the  legal  pro- 
fession he  is  best  known  for  his  brilliant  and  successful 
defense  of  the  printer,  Peter  Zenger,  tried  for  seditious 
libel,  a  case  of  real  historical  importance  as  well  as 
contemporary  interest.  In  this  case,  tried  in  the  supreme 
court  of  New  York  in  1735,  Hamilton,  after  the  court  had 
refused  his  offer  to  prove  the  truth  of  the  statements 
alleged  to  be  libelous,  carried  the  jury  against  the 
instructions  of  the  court  and  obtained  the  defendant's 
acquittal  by  a  bold  address  in  which  the  liberty  of  the 
press  was  asserted  with  unprecedented  vigor.  The 
doctrines  which  he  advanced,  regarded  as  unsound  at 
the  time,  have  since  become  indelibly  impressed  upon 
English  and  American  law,  and  the  trial  deserves  careful 
reading  on  account  of  the  Hght  that  it  throws  on  con- 
temporary political  conditions  and  the  effect  that  it 
had    on    the   law   of   libel. ^      On   the   other    hand,  the 


1  VII  Pennsylvania  Archives  (2d  Series),  94.  See  sketch  of  his 
life  in  Vol.  I,  Lewis's  Great  American  Lawyers  (1907),  L 

2  Howell's  State  Trials,  Vol.  17,  575.  In  Pennsylvania  the 
quarter  sessions  of  Philadelphia  had  in  1692  allowed  the  question 
of  the  seditious  character  of  a*  publication  to  go  to  the  jury. 
Proprietor  v.    Bradford,  Pennypacker's  Colonial  Cases,   117. 


EARLY  COURTS  OF  PENNSYLVANIA.     117 

/ 

part   played   by    Hamilton   in   the   suppression    of   the 

court  of  chancery  shows  a  willingness  to  sacrifice  the 
science  of  jurisprudence  to  the  exigencies  of  politics, 
characteristic  of  his  time,  but  not  in  keeping  with  the 
best  professional  traditions.  Tench  Francis,  the  next 
bar  leader  of  distinction,  enjoyed  a  greater  reputation 
with  his  successors  in  the  post- Revolutionary  period,  and 
is  praised  by  those  whose  learning  entitled  them  to  speak 
with  authority.^ 

As  the  century  advanced  it  became  the  general  custom, 
for  those  who  could  afford  it,  to  send  their  sons  to  be 
educated  in  the  law  at  the  Inns  of  Court.  This  was  more 
prevalent  in  the  Southern  and  Middle  than  in  the  New 
England  colonies.  From  1760  to  the  end  of  the  Revo- 
lution there  were  more  than  one  hundred  American 
students  of  law  in  London,  of  whom  forty-seven  were 
from  South  Carolina,  twenty-one  from  Virginia,  sixteen 
from  Maryland,  eleven  from  Pennsylvania,  five  from 
New  York  and  the  rest  from  the  other  colonies,  no  other 
colony  than  those  named  having  more  than  two 
students.^  Many  of  these  men  attained  greax  distinc- 
tion in  professional  and  public  life.  Among  those  from 
Pennsylvania  were  Chief  Justices  Benjamin  Chew, 
Thomas  McKean,  Edward  Shippen  and  William  Tilgh- 
man;  Justice  Jasper  Yeates;  Presidents  of  the  Supreme 
Executive  Council,  Joseph  Reed  and  John  Dickinson;  as 
well  as  such  distinguished  lawyers  and  citizens  as 
Nicholas  Wain,  Edward  and  Richard  Tilghman,  William 
Rawle,  Jared  Ingersoll  and  Peter  Markoe.  It  is  not 
to  be  supposed  that  the  education  afforded  by  the  Inns 
of  Court  corresponded  to  that  given  in  a  modern  law 
school.     Everything  depended  on  the  diligence  of  the 

>  It  is  a  curious  fact  that  a  number  of  the  bar  leaders  came 
from  Maryland  to  Pennsylvania — Andrew  Hamilton,  Tench 
Francis,  Benjamin  Chew  and  the  Tilghmans. 

*  Life  and  Times  of  John  Dickinson,  28. 


118     EARLY  COURTS  OF  PENNSYLVANIA. 

student  himself,  and  admission  as  a  barrister  came  in 
due  course  after  eating  the  required  number  of  dinners 
regularly  during  the  appointed  terms.  But  the  atmos- 
phere and  associations  were  conducive  to  study,  while 
inspiration  was  to  be  drawn  from  the  courts  at  West- 
minster, where  the  student  attended  and  took  notes  of 
the  arguments  and  decisions.  Such  notebooks  were,  in 
those  days  of  scanty  reporting,  the  treasured  possessions 
of  lawyer  and  judge  and  carefully  consulted  in  the 
preparation  of  important  arguments  and  decisions.  In 
Clayton  v.  Clayton,^  the  manuscript  notes  of  one  of  these 
students  were  cited  in  the  supreme  court  of  Pennsyl- 
vania. The  case  was  one  involving  the  question  as  to 
whether  certain  devisees  under  a  will  took  an  estate 
in  fee  or  for  life,  there  being  no  words  of  inheritance, 
but  a  direction  to  divide.  Mansfield's  decision  in  Wig- 
fall  V.  Brydon,^  was  cited  in  favor  of  a  fee.  It  being 
difficult  to  reconcile  this  decision  with  other  authorities, 
the  case  was  explained  as  turning  on  a  direction  to  sell 
and  divide,  which  appeared  from  the  manuscript  notes 
of  the  case  of  Goodright  v.  Patch,  decided  in  the  King's 
Bench,  June  20,  1773,  taken  by  Edward  Tilghman  while 
a  student  at  law.  So,  too,  in  the  political  capital  of  the 
kingdom,  the  student  studied  the  conflicting  doctrines 
of  the  Tory  and  the  Whig  and  prepared  his  mind  for 
the  momentous  changes  about  to  occur  in  his  home 
across  the  sea. 

Those  who  could  not  go  abroad  for  a  legal  education 
served  a  clerkship  in  the  office  of  a  practitioner  in  the 
courts.  Just  what  were  the  qualifications  for  admis- 
sion do  not  seem  to  be  recorded.  At  the  earliest  period 
sufficient  assurance  seems  to  have  been  all  that  was 
required,    but,    as    the   legal    fraternity   became   better 


1  3  Binney's  Reports,  476  (1811). 

2  3  Burrough's  Reports,  1895  (1766). 


EARLY  COURTS  OF  PENNSYLVANIA.     119 

organized,  it  may  be  presumed  that  the  courts  gave 
more  consideration  to  the  fitness  of  applicants.  In 
1759  the  supreme  court  made  an  order — 

"That  for  the  future  no  penons  be  admitted  attorneys  or 
council  of  this  court  without  being  previously  examined  as  to 
their  qualifications  to  practice,  nor  without  having  taken  the 
oaths  or  affirmations  of  allegiance  to  his  Majesty  and  sub- 
scribed the  usual  Declaration."' 

At  September  term,  17G0,  Mr.  Chew  and  Mr.  Ross 
were  appointed  to  examine  an  applicant  and  at  April 
term,  1761,  Francis  Hopkinson  was  examined  by  Mr. 
Ross  and  Mr.  Dickinson.  Later  admissions  do  not 
recite  an  examination,  and,  perhaps,  this  duty  was  dele- 
gated to  the  local  bar,  but  the  fact  that  there  are  no 
common  pleas  dockets  for  Philadelphia  County  on  file 
prior  to  the  Revolution  renders  the  subject  obscure. 
From  the  few  minute  books  of  the  Philadelphia  common 
pleas  that  have  escaped  destruction  we  find  that  by 
1790  it  was  the  established  practice  for  a  member  of 
the  bar  to  move  in  open  court  for  the  admission  of  the 
candidate.  The  court  would  then  appoint  a  special 
committee  of  three  members  of  the  bar  to  conduct  the 
examination,  and,  if  the  result  was  favorable  to  the 
applicant,  he  was  admitted  and  sworn. ^ 

Prior  to  the  Revolution  the  path  of  the  law  student 
was  made  easier  by  the  publication  of  Blackstone's 
Commentaries,  a  work  that  was  said  by  Edmund  Burke 
to  have  had  a  larger  sale  in  America  than  in  England,  a 
statement  that  would  seem  to  be  justified,  for  hardly 
had  the  first 'complete  edition  appeared  in  England 
before  an  American  edition  was  printed  at  Philadelphia 
(1771)    of  which   about   fourteen   hundred   copies  were 

>  April  Term,  1759,  Supreme  Court  Docket  No.  3,  page  83. 
^  Minute  Book,  Court  of  Common  Pleas,  Philadelphia  County, 
March  Term,  1790. 


120     EARLY  COURTS  OF  PENNSYLVANIA. 

subscribed  for  in  advance,  and  this  although  one  thous- 
and copies  of  the  EngHsh  edition  had  been  imported 
and  sold  in  America.*  The  subscription  list  to  the  local 
edition  is  headed  by  seven  colonial  governors  and  lieuten- 
ant-governors, including  Richard  Penn  of  Pennsylvania 
and  William  Franklin  of  New  Jersey.  The  alphabetical 
list,  headed  by  "John  Adams,  Esq.,  Barrister  at  Law, 
Boston,"  includes  many  distinguished  names,  while  of 
the  local  subscribers,  many  were  from  the  interior  parts 
of  the  state;  John  Creigh,  bookseller  of  Carlisle,  alone 
subscribing  for  forty-five  sets.  It  is  hardly  possible  to 
overestimate  Blackstone's  influence  upon  American 
private  law.  His  Commentaries  became  at  once  the 
vade  mecum  of  the  lay  judge  and  the  pioneer  lawyer,  in 
regions  where  libraries  were  unknown.  The  work  in 
fact  long  stood  for  the  common  law  itself  in  many 
communities,  but  it  may  be  questioned  whether  the 
Commentaries  were  not,  for  a  period,  detrimental  to 
legal  scholarship,  whether  their  flowing  sentences  did 
not  carry  the  superficial  student  too  easily  over  the 
submerged  rocks  of  the  common  law,  whether  learned 
jurists  have  not  wasted  time  in  the  discussion  and 
criticism  of  Blackstone's  theories  and  errors  that  might 
have  been  better  spent  in  a  re  xamination  of  his 
sources. 

As  the  Revolution  approaches  we  find  an  able  group 
leading  the  bar,  Moland,  Chew,  Ross,  Wain,  Tilghman, 
Galloway  and  Dickinson.  Time  was  no  object  to  the 
courts  in  those  peaceful  and  slumberous  days.  In  a 
manuscript  book  of  reports  giving  some  cases  of  that 
time  the  reporter  says,  in  noting  Haldane  v.  Duffield, 
April  Term,  1768,  "The  remainder  of  Mr.  Chew's  argu- 
ment I  did  not  hear  nor  did  I  wait  Mr.  Dickinson's  and 
Mr.  Tilghman's  conclusion,  this  case  having  continued 

^  Hammond's  Blackstone's  Commentaries,  Preface,  page  viii. 


EARLY  COURTS  OF  PENNSYLVANIA.     121 

twelve  hours."*  In  1774  Chew  succeeded  Allen  as  chief 
justice,-  and  in  September  of  that  year  hospitably  enter- 
tained the  members  of  the  Continental  Congress  then 
assembled  in  Philadelphia.  Washington  and  John  Adams 
both  mention  dining  with  him  on  the  twenty-second  of 
that  month.     Adams  writes  in  his  diary: — 

"Dined  with  Mr.  Chew  Chief  Justice  of  the  Province  with  all 
the  gentlemen  from  Virginia,  Dr.  Shippen,  Mr.  Tilghman  and 
many  others.  We  were  shown  into  a  grand  entry  and  staircase 
and  into  an  elegant  and  magnificent  chamber  until  dinner. 
About  4  o'clock  we  were  called  down  to  dinner.  The  furniture 
was  all  rich.  Turtle  and  ever}''  other  thing,  flummery,  jellies, 
sweetmeats,  of  20  sorts,  trifles,  whipped  sillabubs,  floating 
islands,  fools,  &ct.,  and  then  a  dessert  of  fruits,  raisins,  almonds, 
pears,  peaches.  Wines  most  excellent  and  admirable.  I  drank 
Madeira  at  a  great  rate,  &  found  no  inconvenience  in  it."* 

The  stately  mansion  of  the  chief  justice  yet  stands, 
the  fine  old  colonial  hospitality  a  treasured  memory. 
The  smoke  and  dust  of  fratricidal  war  darkened  it,  its 
walls  were  battered  with  shot  and  its  floor  stained  with 
blood;  bench  and  bar  were  scattered,  some  to  attain 
distinction  in  the  camps  and  councils  of  the  new  nation, 
others  to  live  obscurely  through  weary  years  of  sus- 
picion or  to  fly  from  the  country  of  their  birth  as 
attainted  traitors,  their  lands  forfeited  and  their  names 
soon  forgotten. 


*  Keith's  Provincial  Councillors,  328. 

^  X  Pennsylvania  Colonial  Records,  173,  April  29,  1774. 

*  Keith's  Provincial  Councillors,  329. 


CHAPTER  III. 

The  appearance  docket  of  the  supreme  court  for  April 
Term,  177(),  contains  the  following  entry: — 

"Philadelphia,  s.  s. 

"At  a  Supream  Court  held  at  Philadelphia  for  the  Province 
of  Pennsylvania  the  tenth  day  of  April  in  the  sixteenth  year 
of  the  reign  of  our  Sovereign  Lord  George  the  third  King  of 
Great  Britain  France  and  Ireland,  Defender  of  the  Faith  &c  and 
in  the  year  of  our  Lord  one  thousand  seven  hundred  and  seventy 
six:    and  continued  by  adjournment  until — " 

Until  when?     Doomsday  no  doubt;  for  this  was  the 
last  court  held  under  our  "Sovereign  Lord  George"  and 
the  date  of  continuance  was  never  filled  in.     Independ- 
ence, however,  was  not  welcomed  in  Pennsylvania  with 
the  same  enthusiasm  as  in  the  New  England  states.     At 
the  beginning  of  the  conflict  the  influential  and  conserva- 
tive element  in  the  province  while  opposed  to  the  meas- 
ures of  parliament  was  exceedingly  adverse  to  the  idea 
of  a  separation  from  Great  Britain.     The  grievances  of 
the  Pennsylvanians  were  not  as  great  as  those  of  the 
other  colonists;  they  had  a  liberal  charter  and  a  satis- 
factory system  of  local  government,  w^hile  the  proprie- 
tary  family   stood   between   them   and   the    Crown   to 
soften  controversies  and  prevent  conflicts  of  authority; 
many  earnestly  hoped  for  reconciliation  and  were  carried 
on  the  tide  of  revolution  sorely  against  their  wills.     To 
accelerate  the   movement  and  to   get   rid  of  the  con- 
servatives,   a   bold,    radical   minority,    with   the   moral 
support  of  congress,   organized  and  carried  through  a 
revolution  in  the  government  of  Pennsylvania.     A  con- 
vention   called   in   July,    1776,    and    presided    over   by 
Franklin,    drew   up    a   new   constitution,    which,    after 
considerable    opposition,    was    declared    to    have    been 


EARLY  COURTS  OF  PEXXSYLVAXIA.     123 

adopted.  Penn's  charter  was  discarded,  the  proprie- 
tary government  ceased  to  exist,  the  old  officials  and 
assembly  retired  and  new  men  took  their  places. 

The  Constitution  of  177(3  was  not  a  satisfactory  instru- 
ment and  was  discarded  after  a  fourteen  years'  trial, 
but  some  of  its  features  are  worth  noticing.  The 
executive  power  was  vested  in  a  supreme  executive 
council  composed  of  twelve  members,  one  from  the 
city  of  Philadelphia  and  eleven  from  the  respective 
counties.  The  term  of  office  was  three  years,  and  the 
president  and  vice-president  were  chosen  from  the 
council  by  joint  ballot  of  the  assembly  and  council. 
The  president  and  council  were  empowered  to  choose 
and  commission  all  judges  and  other  officers  and  fill 
vacancies  in  office.  Every  officer  of  the  state  was 
subject  to  impeachment  by  the  assembly,  the  impeach- 
ments to  be  heard  before  the  president  and  council. 
The  principal  judiciary  clauses  were  as  follows : — 

"Sec.  23.  The  judges  of  the  supreme  court  of  judicature 
shall  have  fixed  salaries,  be  commissioned  for  seven  years  only, 
though  capable  of  reappointment  at  the  end  of  that  term,  but 
removable  for  misbehaviour  at  any  time  by  the  general  assembly; 
they  shall  not  be  allowed  to  sit  as  members  in  the  continental 
congress,  executive  council  or  general  assembly,  nor  to  hold  any 
other  office,  civil  or  military,  nor  take  or  receive  fees  or  per- 
qviisites  of  any  kind. 

"Sec.  25.  Trials  shall  be  by  jury  as  heretofore,  and  it  is  recom- 
mended to  the  legislature  of  this  state  to  provide  by  law  against 
every  corruption  or  partiality  in  the  choice,  return  or  appoint- 
ment of  juries. 

"Sec.  26.  Courts  of  sessions,  common  pleas  and  orphans'  courts 
shall  be  held  quarterly  in  each  city  and  county,  and  the  legis- 
lature shall  have  power  to  establish  all  such  other  courts  as  they 
may  judge  for  the  good  of  the  inhabitants  of  the  state;  all  courts 
shall  be  open,  and  justice  shall  be  impartially  administered  with- 
out corruption  or  unnecessary  delay:  All  their  officers  shall  be 
paid  an  adequate  but  moderate  compensation  for  their  services, 
and  if  any  officer  shall  take  greater  or  other  fees  than  the  laws 
allow  him,  either  directly  or  indirectly,  it  shall  ever  after  dis- 
qualify him  from  holding  any  office  in  this  state. 


124     EARLY  COURTS  OF  PENNSYLVANIA. 

"Sec.  27.  All  prosecutions  shall  commence  in  the  name  and  by 
the  authority  of  the  freemen  of  the  commonwealth  of  Pennsyl- 
vania, and  all  indictments  shall  conclude  with  these  words — 
agai)ist  the  peace  and  dii^nity  of  the  same.  The  stile  of  all  process 
hereafter  in  this  state  shall  be  The  commonwealth  of  Pennsyl- 
vania."^ 

The  office  of  justice  of  the  peace  was  made  elective,  the 
voters  of  the  respective  districts  to  choose  two,  one  of 
whom  was  to  be  commissioned  by  the  president  for  the 
term  of  seven  years. 

A  pecuHar  feature  of  the  constitution  was  the  provi- 
sion for  the  election  every  seven  years  of  a  council  of 
censors  who  were  to  meet  and  inquire  whether  the  con- 
stitution had  been  preserved  inviolate,  whether  the 
laws  were  duly  executed,  and,  if  there  appeared  any 
necessity  to  amend  the  constitution,  to  call  a  conven- 
tion for  that  purpose.  While  these  changes  were  in 
progress  and  while  most  of  the  active  citizens  were 
engaged  in  war  or  political  strife,  the  administration 
of  justice  was  sadly  neglected. 

By  an  act  of  January  28,  1777,^  passed  for  the  purpose 
of  putting  into  effect  such  and  so  much  of  the  laws  of 
the  province  as  were  necessary  in  the  commonwealth, 
it  was  provided,  that  the  courts  of  quarter  sessions  and 
gaol  delivery,  petty  sessions,  common  pleas,  orphans' 
courts,  supreme  court,  courts  of  oyer  and  terminer  and 
general  gaol  delivery  should  be  held  and  kept  in  each 
respective  county  at  the  times  and  places  appointed 
by  law,  with  all  the  powers,  authority  and  jurisdiction 
which  by  law  such  justices  and  judges  theretofore  had 
had  and  exercised  and  such  as  were  given  by  the  con- 
stitution. It  was  further  provided  that  the  president 
and  council  should  appoint  one  justice  in  each  county 

1  Proceedings  of  the  Constitutional  Conventions  of  Pennsyl- 
vania of  1776  and  1790,  Gl.  The  equity  clause  will  be  referred 
to  later. 

^  IX  Statutes  at  Large,  29. 


EARLY  COURTS  OF  PENNSYLVANIA.     125 

to  preside  in  the  respective  courts  and  in  his  absence 
the  justices  who  should  attend  were  to  choose  a  presi- 
dent. All  actions  in  the  provincial  courts  were  con- 
tinued in  the  same  state  as  if  the  authority  of  such 
courts  had  never  ceased. 

The  chief  justice  of  the  new  supreme  court  was  Thomas 
McKean,  a  signer  of  the  Declaration  of  Independence 
and  one  of  the  most  active  of  the  patriot  party.  The 
associate  justices  were  William  A.  Atlee  and  John 
Evans.  The  suspension  of  the  courts  caused  consider- 
able inconvenience  and  letters  and  petitions  complain- 
ing of  the  prevailing  conditions  were  presented  to  the 
council.^  In  the  counties  the  same  trouble  was  had 
with  regard  to  the  justices,  many  of  whom  were  away, 
or  unwilling  to  act  in  the  unsettled  state  of  affairs;  in 
some  parts  of  the  state  the  local  committees  of  safety 
assumed  judicial  power  and  took  cognizance  of  minor 
crimes. 

The  first  session  of  the  common  pleas,  at  Philadelphia, 
when  the  style  of  process  was  altered  from  king  to  com- 
monwealth, was  held  in  September,  1777,  when  six 
attorneys  were  admitted  to  practice,-  but  the  British 
were  already  marching  on  Philadelphia,  and  before  the 
end  of  the  month  the  army  of  King  George  had  expelled 
the  new  government. 

During  the  occupation  of  Philadelphia  by  General 
Howe,  from  September,  1777,  to  June,  1778,  the  seat 
of  government  was  in  Lancaster.  With  the  return  of 
the  state  officials  to  Philadelphia  the  various  agencies 
of  proscription  became  active.  Many  persons  were 
declared    traitors    and    their    estates    forfeited    to    the 


>  VI  Pennsylvania  Archives  (1st  Series),  228,  245,  294;  VII 
Pennsylvania  Archives  (1st  Series),  72;  IX  Colonial  Records, 
214,  260. 

=  Biography  of  William  Lewis,  Pennsylvania  Magazine,  Vol. 
XX,  30. 


120     EARLY  COURTS  OF  PENNSYLVANIA. 

commonwealth.*  The  most  important  cases  tried  before 
the  newly  organized  supreme  court  were  treason  trials, 
among  which  those  of  Roberts  and  Carlisle,  which  are 
very  briefly  reported,  aroused  great  popular  interest.^ 
Roberts,  a  miller  of  Lower  Merion  Township,  was  accused 
of  acting  as  a  guide  to  Sir  William  Howe  and  of  per- 
suading various  persons  to  enlist  in  the  British  army. 
Carlisle  was  charged  with  having  accepted  a  commission 
to  keep  watch  over  the  gate  of  the  city  of  Philadelphia, 
established  by  Howe  to  prevent  the  ingress  and  egress 
of  persons  not  provided  with  passes.  The  accused  were 
tried  on  the  twenty-fifth  and  thirtieth  of  September, 
1778,  found  guilty  and  sentenced  to  be  hanged.  Earnest 
appeals  for  executive  clemency  were  made  on  behalf 
of  the  prisoners  by  petitions,  but  the  council  was  firm 
and  both  men  were  hanged.  In  these,  as  in  most  of  the 
other  treason  trials,  James  Wilson  appeared  for  the 
defendants  and  acquired  such  unpopularity  through  his 
faithful  efforts  in  behalf  of  his  clients  that  his  house  was 
attacked  by  a  mob,  which  was  driven  off  only  after  a 
fight  that  cost  several  persons  their  lives. 

The  Revolution  brought  to  an  end  the  court  of  vice 
admiralty,  of  which  Edward  Shippen  was  judge,  and  it 
became  necessary  to  create  a  tribunal  to  take  its  place. 
The  Continental  Congress  advised  the  several  legislatures 
to  establish  courts  of  admiralty  and,  accordingly,  the 
assembly,  on  March  26,  1776,  passed  a  resolution  creating 
a  court  of  admiralty  to  be  held  in  the  city  of  Phila- 
delphia to  try  cases  of  captured  vessels  brought  into  that 
port,  with  the  right  of  appeal  to  congress  or  to  such 
person  or  persons  as  they  should  appoint  to  hear  appeals.^ 

1  X  Colonial  Records,  610,  745. 

2  Respublica  v.  Carlisle,  1  Dallas's  Reports,  35  (1778);  Respub- 
lica  V.  Roberts,  1  Dallas's  Reports,  39  (1778);  and  see  IX  Colonial 
Records,  600,  613. 

*  Journal  of  Congress,  Vol.  1,  260;  VIII  Statutes  at  Large,  519. 


EARLY  COURTS  OF  PENNSYLVANIA.     127 

For  this  last  purpose  a  committee  was  appointed  by 
congress,  whose  feeble  and  unsupported  authority  was 
openly  defied  by  George  Ross,  the  Pennsylvania  judge  of 
admiralty,  in  the  case  of  the  "Active,"  giving  rise  to  a 
memorable  controversy  carried  on  in  the  courts  long 
after  the  adoption  of  the  constitution  of  the  United 
States,  and  nearly  resulting  in  an  armed  conflict  between 
the  federal  and  state  authorities.  This  case,  or  rather 
series  of  cases,  pointedly  illustrates  the  growth  of  the 
federal  power,  the  decree  of  the  helpless  commissioners 
of  admiralty  of  the  Continental  Congress,  long  flouted  by 
the  state  judges,  prevailing,  after  many  years,  by  virtue 
of  a  judgment  of  the  supreme  court  of  the  United  States, 
to  whose  authority  the  state  officials,  after  calling  out 
the  militia  to  resist  the  marshal,  yielded  a  sullen  obedi- 
ence.^ 

Francis  Hopkinson,  the  distinguished  writer,  who 
succeeded  Ross  in  1779,  was  the  first  state  judge  to 
undergo  the  unpleasant  experience  of  an  impeachment 
by  the  assembly.  This  proceeding,  which  took  place 
in  December,  1780,  was  the  result  of  a  complaint  by  the 
judge  against  Mathew  Clarkson,  the  marshal  of  the 
court,  which  resulted  in  his  dismissal.  Clarkson  in 
revenge  made  charges  against  the  judge  before  the 
assembly,  which  voted  for  his  impeachment.  The  court 
consisted  of  President  Reed  and  the  council.  Smith  and 
Galbraith  managed  for  the  house  with  Attorney-General 
Bradford,  while  Judge  Hopkinson  was  represented  by 
James  Wilson.  The  principal  charges  against  the  judge 
were  that  he  had  wrongfully  issued  a  writ  for  the  sale 
of  the  cargo  of  a  ship,  and  that  he  had  exacted  illegal 

»  Ross  V.  Rittcnhousc,  2  Dallas's  Reports,  160  (1792);  01m- 
stead's  Case,  Brightly's  Nisi  Prius  Reports,  9  (1809);  United 
States  V.  Peters,  5  Cranch  (U.  S.)  115  (1809);  Trial  of  General 
Bright;  Federal  Courts  before  the  Constitution,  131  United 
States  Reports,  appendix  at  page  xxix. 


128     EARLY  COURTS  OF  PENNSYLVANIA. 

fees  in  a  prize  case.  The  judgment  of  the  council,  as 
pronounced  by  the  president,  was  an  acquittal  upon  all 
the  charges,  although  it  seemed  to  the  council  that  the 
fees,  which  were  charged  according  to  the  recognized 
practice  of  the  court,  were  excessive.^  Upon  the  adop- 
tion of  the  constitution  of  the  United  States  admiralty 
jurisdiction  passed  to  the  federal  district  courts  and 
Judge  Hopkinson  was  appointed  the  first  district  judge 
for  Pennsylvania  under  the  Act  of  Congress  of  Septem- 
ber 14,  1789. 

The  necessity  for  a  court  of  last  resort  to  take  the 
place  of  the  privy  council  of  Great  Britain  was  met  by 
the  creation  of  the  High  Court  of  Errors  and  Appeals, 
under  the  act  of  February  28,  1780,^  to  hear  appeals 
from  the  supreme  court,  the  register's  courts  and  the 
court  of  admiralty. 

This  act,  after  reciting  that  the  laws  of  the  late 
province  gave  a  very  precarious,  difficult  and  expensive 
remedy  to  parties  injured  by  erroneous  judgments,  by 
appeal  to  the  king  in  council,  and  that  as  "the  good 
people  of  this  commonwealth,  by  their  happy  deliver- 
ance from  their  late  dependent  condition,  and  by  becom- 
ing free  and  sovereign  are  released  from  this  badge  of 
slavery  and  have  acquired  the  transcendent  benefit  of 
having  justice  administered  to  them  at  home  and  at 
moderate  costs  and  charges,"  enacted  that  a  court  of 
error  should  be  established  composed  of  the  president 
of  the  supreme  executive  council,  the  judges  of  the 
supreme  court,  the  judge  of  the  admiralty,  together  with 
three  persons  of  known  integrity  and  ability  commis- 
sioned for  seven  years,  any  four  or  more  of  them  to 
constitute  a  quorum.  The  court  in  this  form  had  but  a 
brief  existence,  its  composition  being  materially  changed 

^  Pennsylvania   State  Trial   (Hogan,    1794),   3;     XII  Colonial 
Records,  584,  December  26,  1780. 
-  X  Statutes  at  Large,  52. 


EARLY  COURTS  OF  PENNSYLVANIA.     129 

by  the  Act  of  April  13,  1791.^  Of  the  presidents  of  the 
council,  Reed  and  Dickinson  were  leading  lawyers  and 
Dickinson  rendered  at  least  one  very  able  decision  in 
the  admiralty  case  of  Talbot  v.  Three  Brigs.^  Benjamin 
Franklin,  although  he  had  once  sat  for  a  brief  period 
in  the  common  pleas,  was  wise  enough  to  know  that 
the  administration  of  law  required  a  special  education, 
at  least  there  is  no  reported  opinion  by  him  while  presi- 
dent. Of  the  extra  members  of  the  court,  Edward 
Shippen,  judge  of  vice  admiralty  under  the  Crown, 
subsequently  became  chief  justice  of  the  supreme  court; 
Francis  Hopkinson  has  been  mentioned  and  Henry 
Wynkoop  was  president  judge  of  Bucks  County. 

That  the  Constitution  of  1776  was  not  working 
smoothly  was  the  opinion  of  a  majority  of  the  council 
of  censors  which  met  in  1783  to  consider  whether  the 
constitution  was  being  observed  and  whether  it  needed 
amendment.  The  committee  on  defects  reported  that 
the  commissioning  of  the  judges  of  the  supreme  court 
for  seven  years  only  was  a  material  defect,  because  it 
rendered  the  tenure  of  judges  dependent  on  the  will  of 
the  council,  while  the  committee  on  abuses  reported 
that  the  section  requiring  fixed  salaries  for  the  judiciary 
had  not  been  complied  with  as  it  ought  and  that  perma- 
nent salaries  should  without  delay  be  established  for  the 
judges  during  their  continuance  in  office.^  The  findings 
of  the  censors  on  these  and  other  points  were  to  bear 
fruit  in  the  Constitution  of  1790. 

In  1786  an  addition  was  made  to  the  jurisdiction  of 
the  supreme  court,  which  hitherto  had  exercised  no 
original  jurisdiction  in  civil  cases  except  in  fines  and 
common  recoveries.     By  an  act  of  that  year  issues  of 

^  3  Smith's  Laws  of  Pennsylvania,  28. 
2  1  Dallas's  Reports,  95  (1784). 

'  Proceedings  of  the  Constitutional  Conventions  of  Pennsyl- 
vania of  1776  and  1790,  70,  107. 


130  EARLY  COURTS  OF  PEN N SYLVAN L\. 

fact  were  allowed  to  be  tried  in  banc  or  at  jiisi  prius  by 
that  court  in  the  county  of  Philadelphia.^ 

A  case  that  excited  considerable  interest  at  the  time 
was  the  outlawry  of  Aaron  Doan,  one  of  the  famous 
brothers  who  terrorized  Bucks  County  and  the  surround- 
ing country.  The  defendant,  having  been  attainted  of 
robbery,  was  brought  into  the  supreme  court  on  Septem- 
ber 24,  1784,  and  after  hearing  before  the  court  upon 
several  exceptions  to  the  outlawry,  all  of  which  were 
overruled,  execution  was  awarded.  When  the  transcript 
of  the  record  was  remitted  to  the  supreme  executive 
council,  in  order  that  a  warrant  for  the  execution  should 
issue,  the  humanity  of  President  Dickinson  seems  to 
have  been  shocked  that  a  man  should  be  deprived  of  his 
life  without  a  trial  by  jury  and,  accordingly,  a  letter  was 
addressed  to  the  supreme  court  inquiring  whether  there 
were  any  modern  instances  in  England  of  persons  being 
executed  upon  outlawry,  or  whether  that  had  ever 
occurred  in  Pennsylvania,  and  was  compatible  with  the 
constitution.  Technical  objections  to  the  record  were 
also  raised.^  The  court  replied  that,  while  not  bound 
to  give  reasons  for  their  judgment  and  desiring  that  this 
should  not  be  construed  as  a  precedent,  they  gave  it  as 
their  opinion  that  under  the  laws  of  the  commonwealth 
and  the  common  law  they  had  no  doubt  that  the  prisoner 
had  been  properly  outlawed  and  had  forfeited  his  life, 
but  could  mention  no  case  in  Pennsylvania  of  a  person 
executed  upon  outlawry  by  judicial  proceedings  alone, 
except  that  of  one  Daniel  Dawson,  who  had  been  exe- 
cuted since  the  Declaration  of  Independence,  in  conse- 
quence of  an  attainder,  by  virtue  of  a  proclamation  of 
the  supreme  executive  council  and  judicial  proceedings 

>  XII  Statutes  at  Large,  308;  2  Smith's  Laws  of  Pennsylvania. 
392. 

^  Respublica  v.  Doan,  1  Dallas's  Reports  (Wharton's  Edition), 
86  (1784). 


EARLY  COURTS  OF  PENNSYLVANIA.  L31 

thereon,  in  which  the  court  awarded  execution  by  sen- 
tence of  death,  no  judgment  having  been  given  before. 
Dickinson  was  still  dissatisfied  and  addressed  a  special 
message  to  the  assembly  on  the  subject,  but  no  action 
was  taken  at  that  time  and  the  humane  scruples  of 
Dickinson  did  not  influence  his  successors,  Franklin 
and  Muhlenberg,  upon  the  outlawry  of  the  other  Doans, 
Abraham  and  Levi.^  In  fact  except  for  the  objections 
to  the  proceedings,  as  out  of  harmony  with  modern  ideas, 
little  sympathy  would  have  been  wasted  on  these  des- 
peradoes who,  from  all  accounts,  richly  deserved  their 
sentences.  By  an  Act  of  September  23,  1791,"  the 
process  of  outlawry  was  better  regulated,  and  by  the 
Act  of  April  22,  1794,^  the  death  penalty  was  abolished 
for  all  crimes  except  murder  in  the  first  degree. 

This  reform  was  largely  due  to  the  efforts  of  William 
Bradford,  who  in  that  year  became  a  judge  of  the 
supreme  court,  resigning  a  few  years  later  to  accept  the 
office  of  attorney-general  of  the  United  States  in  Wash- 
ington's cabinet,  whose  brilliant  career  was  cut  short 
by  an  early  death.  Prior  to  this  time  the  minutes  of  the 
supreme  executive  council  are  burdened  with  appeals 
for  executive  clemency  and  numerous  orders  appear 
for  the  remission  of  corporal  punishment,  as  well  as  of 
death  sentences.  That  the  council  had  an  eye  to 
dramatic  effect,  or  were  convinced  of  the  value  of  mental 
suggestions,  is  indicated  by  one  order  in  which  a  reprieve 
is  granted  to  a  prisoner  "which  the  sheriff  is  not  to 
make  known  to  him  until  he  be  taken  under  the  gallows."  ^ 
Executions  were  still  public  and  were  attended  by  vast 
crowds,    drawn    by    the    same    morbid    curiosity    as    is 

»  XV  Colonial  Records,  505,  544;  Watson's  Annals  of  Phila- 
delphia (1850),  Vol.  II,  330. 

^  3  Smith's  Laws  of  Pennsylvania,  37. 
'  3  Smith's  Laws  of  Pennsylvania,  186. 
*  XV  Colonial  Records,  31. 


132  EARLY  COURTS  OF  PENNSYLVANIA. 

exhibited  by  their  descendants  who  feast  on  the  pub- 
Hshed  details  of  the  so-called  private  executions.^ 

In  1790  a  new  constitution  for  the  state  was  drafted 
and  adopted  by  a  convention  called  for  that  purpose. 
The  old  constitution  had  many  defects  and  the  newly 
adopted  constitution  of  the  United  States  offered  a 
model  which  many  were  eager  to  imitate.  In  the  new 
constitution  the  legislative,  executive  and  judicial  powers 
were  distinguished  and  defined  according  to  the  now 
classic  American  method,  and  the  state  was  provided 
with  a  governor  and  a  senate  as  well  as  an  assembly. 
In  remodeling  the  judiciary,  the  subject  with  which  we 
are  concerned,  an  earnest  but  unsuccessful  efifort  was 
made  to  establish  a  court  of  chancery.  The  principal 
changes  in  the  judiciary  were  embodied  in  the  follow- 
ing clauses  of  Article  V  relating  to  the  judiciary:- — 

"Sec.  2.  The  judges  of  the  supreme  court,  and  of  the  several 
courts  of  common  pleas,  shall  hold  their  offices  during  good 
behaviour:  But  for  any  reasonable  cause,  which  shall  not  be 
sufficient  ground  for  impeachment,  the  governor  may  remove 
any  of  them,  on  the  address  of  two-thirds  of  each  branch  of  the 
legislature.  The  judges  of  the  supreme  court,  and  the  presidents 
of  the  several  courts  of  common  pleas  shall,  at  stated  times, 
receive,  for  their  services,  an  adequate  compensation,  to  be 
fixed  by  law;  which  shall  not  be  diminished  during  their  con- 

'  12  Hazard's  Pennsylvania  Register,  117;  13  Hazard's 
Pennsylvania  Register,  4.  When,  in  1783,  it  was  proposed  in 
England  to  do  away  with  the  public  procession  to  Tyburn,  Dr. 
Samuel  Johnson  remarked,  in  his  vigorous  manner,  to  Sir 
William  Scott:  "Sir,  executions  are  intended  to  draw  spectators" 
If  they  do  not  draw  spectators,  they  don't  answer  their  purpose. 
The  old  method  was  most  satisfactory  to  all  parties;  the  public 
was  gratified  by  a  procession;  the  criminal  was  supported  by  it. 
Why  is  all  this  to  be  swept  away?"  Boswell's  Life  of  Johnson, 
chapter  56. 

^  Proceedings  of  the  Constitutional  Conventions  of  Pennsyl- 
vania of  1776  and  1790,  301,  and  3  Smith's  Laws  of  Pennsylvania, 
xxxix. 


EARLY  COURTS  OF  PENNSYLVANIA.     133 

tinuance  in  office;  but  they  shall  receive  no  fees  or  perquisites 
of  office,  nor  hold  any  other  office  of  profit  under  this  common- 
wealth. 

"Sec.  3.  The  jurisdiction  of  the  supreme  court  shall  extend  over 
the  state;  and  the  judges  thereof  shall,  by  virtue  of  their  offices, 
be  justices  of  oyer  and  terminer  and  general  gaol  deliver}--  in  the 
several  counties. 

"Sec.  4.  Until  it  shall  be  otherwise  directed  b}-  law,  the  several 
courts  of  common  pleas  shall  be  established  in  the  following 
manner:  The  governor  shall  appoint  in  each  county,  not  fewer 
than  three,  not  more  than  four  judges,  who,  during  their  con- 
tinuance in  office,  shall  reside  in  such  county:  The  state  shall 
be,  by  law,  divided  into  circuits,  none  of  which  shall  include 
more  than  six,  nor  fewer  than  three  counties.  A  president  shall 
be  appointed  of  the  courts  in  each  circuit,  who,  during  his  con- 
tinuance in  office,  shall  reside  therein.  The  president  and  judges, 
any  two  of  whom  shall  be  a  quorum,  shall  compose  the  respective 
courts  of  common  pleas. 

"Sec.  5.  The  judges  of  the  courtof  common  pleas  in  each  county 
shall,  by  virtue  of  their  offices,  be  justices  of  oyer  and  terminer 
and  general  gaol  delivery,  for  the  trial  of  capital  and  other 
offenders  therein;  and  two  of  the  said  judges,  the  president 
being  one,  shall  be  a  quorum;  but  they  shall  not  hold  a  court  of 
oyer  and  terminer  or  gaol  delivery  in  any  county,  when  the 
judges  of  the  supreme  court,  or  any  of  them,  shall  be  sitting  in 
the  same  county.  The  party  accused,  as  well  as  the  common- 
wealth, may,  under  such  regulations  as  shall  be  prescribed  by 
law,  remove  the  indictment  and  proceedings,  or  a  transcript 
thereof,  into  the  supreme  court." 

The  most  important  changes,  as  will  readily  be  seen, 
were  the  restoration  of  life  tenure  to  the  judges  and  the 
grouping  of  the  counties  into  circuits  with  a  president 
for  the  common  pleas  courts  therein,  a  measure  rendered 
necessary  by  the  growth  of  the  state,  particularly  in  the 
West.  By  the  appointment  of  judges  learned  in  the 
law  to  preside  over  the  lower  courts  in  the  respective 
circuits  some  measure  of  relief  was  afforded  to  the 
supreme  court,  whose  work  was  becoming  increasingly 
arduous. 


134     EARLY  COURTS  OF  PENNSYLVANIA. 

By  the  Act  of  April  lo,  1701,^  the  courts  were  estab- 
lished in  conformity  with  the  new  constitution.  The 
sui)reme  court  was  required  to  hold  three  terms  a  year 
and  courts  of  nisi  prins  in  the  intervals.  The  state  was 
divided  into  five  circuits  or  districts  (increased  in  1806 
to  ten),  each  comprising  a  group  of  counties,  and  for 
each  district  a  president  judge  learned  in  the  law  was 
appointed  by  the  governor  who,  with  not  less  than 
three,  or  more  than  four  other  persons,  commissioned  as 
judges  for  each  of  the  counties  in  the  circuit,  formed 
for  such  counties,  respectively,  the  courts  of  common 
pleas,  oyer  and  terminer,  quarter  sessions  and  orphans' 
court.  The  president  and  any  two  of  the  judges,  with 
the  register  of  wills,  comprised  the  register's  court. 

In  cases  involving  more  than  four  hundred  dollars,  a 
writ  of  error  lay  from  the  supreme  court  and  the  register's 
court  to  the  high  court  of  errors  and  appeals,  which 
was  also  remodeled,  and,  under  this  act,  comprised  the 
judges  of  the  supreme  court  and  the  presidents  of  the 
common  pleas,  with  three  other  persons  of  known  legal 
ability  commissioned  in  the  same  manner  as  the  judges 
of  the  supreme  court.  It  was  further  provided  that  such 
judges  as  should  have  given  judgment  below  should  be 
excluded  from  sitting  on  the  hearing  of  that  cause  on 
appeal.  The  high  court  of  errors  and  appeals  sat  once 
a  year  in  Philadelphia.  On  the  organization  of  this 
court  Benjamin  Chew,  the  former  provincial  chief  justice, 
was  named  as  an  extra  member  and  was  made  presi- 
dent of  the  court,  the  other  extra  places  not  being 
filled. 

By  another  act  of  the  same  date  the  salaries  of  the 
judges  were  fixed  as  follows :  Chief  justice  of  the  supreme 
court  ;^1000,  associate  justices  and  president  judge  of 
first  district  i^GOO,  presidents  of  other  districts  ^500.- 


1  3  Smith's  Laws  of  Pennsylvania,  28. 

2  April  13,  1791,  3  Smith's  Laws  of  Pennsylvania,  26. 


EARLY  COURTS  OF  PENNSYLVANIA.     L35 

When  it  is  remembered  that  these  are  not  pounds 
sterling,  but  Pennsylvania  currency,  the  modesty  of 
the  salaries  is  but  too  evident.  Thirty  shillings  a  day 
were  allowed  to  each  justice  of  the  supreme  court  for 
traveling  expenses  when  on  circuit.  In  179G  the  salaries 
of  the  associate  justices  and  the  president  of  the  first 
district  were  raised  $400  and  of  the  other  presidents 
$2G(J.67.  At  the  time  of  the  Constitutional  Convention 
of  1837,  the  salary  of  the  chief  justice  of  the  supreme 
court  was  $26(36  and  of  the  associate  justices  $2000  each, 
with  an  allowance  for  mileage  and  expenses  on  circuit. 
The  judges  of  the  district  courts  were  paid  $2000  each, 
as  well  as  the  judges  of  the  common  pleas  for  the  first 
judicial  district.  In  the  other  districts  the  president 
judges  of  the  common  pleas  received  $1600  and  the 
associates  $140  with  mileage. "^ 

In  1799,  further  changes  were  made  in  the  jurisdiction 
of  the  courts,  which  for  some  time  were  the  subject  of 
constant  legislative  experiments.  As  the  population 
grew,  the  impracticability  of  keeping  up  the  system  of 
nisi  prius  sessions  of  the  supreme  court  became  more 
and  more  obvious,  while  to  the  suitors  and  the  bar,  the 
hardship  and  expense  of  crossing  the  Alleghenies  to 
attend  a  session  of  the  court  in  banc,  at  Philadelphia, 
in  the  days  before  railroads,  amounted  to  a  denial  of 
justice.  But  the  bar  was  not  yet  prepared  to  give  up  its 
inherited  fondness  for  itinerant  justice,  and  the  courts 
of  common  pleas  of  the  newly  established  judicial  dis- 
tricts had  not  been  long  enough  in  operation  to  be 
recognized  as  the  true  solution  of  the  problem.  The 
Act  of  March  20,  1799,-  therefore  provided  that 
instead  of  nisi  prius  courts,  there  should  be  held,  except 
in  the  county  of  Philadelphia,  circuit  courts  which  were 

'  Debates  of  Pennsylvania  Constitutional  Convention  of 
1837,  Vol.  1,  263. 

'  5  Carey  &  Bioren's  Laws  of  Pennsylvania,  094. 


136     EARLY  COURTS  OF  PENNSYLVANIA. 

of  the  same  nature  as  the  court  of  nisi  prius  except  that 
the  judges  holding  the  same  were  empowered  to  give 
judgment,  pass  decrees  and  award  execution  in  as  ample 
a  manner  on  circuit  as  when  sitting  in  banc.  The  right 
of  appeal  to  the  supreme  court  was  preserved  under 
special  conditions. 

Although  not  required  by  the  act  by  which  these 
courts  were  constituted,  it  continued  to  be  the  practice, 
as  before,  for  two  judges  to  ride  on  circuit  and  sit  together 
at  trials  in  these  courts.  This  was  unnecessary,  as  the 
time  of  the  judges  could  have  been  better  distributed  by 
sitting  singly  on  jury  trials,  while  trials  conducted  by 
two  judges  were  subject  to  the  same  inconvenience  as 
when  conducted  by  the  four  judges  sitting  in  banc, 
which,  as  Judge  Brackenridge  has  remarked,^  caused 
great  delay,  as  documents  offered  in  evidence  had  to  be 
read  by  all  the  judges  in  turn  and  a  note  taken  by  each. 

Trials  in  banc  were  abolished  in  Philadelphia  by  the 
Act  of  February  24,  1806,^  which  also  established  a 
western  district  for  the  supreme  court,  which  was  re- 
quired to  hold  its  September  term  at  Pittsburg.  It 
was  also  provided  that  in  the  future  circuit  courts 
should  be  held  by  one  judge  and  that  the  judges  should 
alternate  so  that  the  same  judge  would  not  sit  oftener 
than  once  in  the  same  county  in  every  fourth  successive 
term.  The  act  also  abolished  the  high  court  of  errors 
and  appeals  and  vested  its  powers  in  the  supreme  court. 
As  respects  the  common  pleas,  the  state  was  divided 
into  ten  judicial  districts  and  a  president  judge  appointed 
in  each  of  the  new  districts.  It  was  further  provided 
that  whenever  required  by  either  party  or  counsel 
the  judge  should  reduce  his  opinion  to  writing  with  his 
reasons  and  file  the  same  of  record  in  the  cause. ^ 

^  Brackenridge's  Law  Miscellanies,  2S3. 

2  4  Smith's  Laws  of  Pennsylvania,  270. 

3  See  also  the  Act  of  March  6,  1812  (5  Smith's  Laws  of  Penn- 
sylvania, 308). 


EARLY  COURTS  OF  PENNSYLVANIA.     137 

By  an  act  of  April  10,  1807/  a  middle  district  was 
established  for  the  supreme  court,  the  term  to  be  held  at 
Sunbury,  and  again  in  1809"  two  additional  districts 
were  established,  the  Lancaster  district,  and  the  southern 
to  be  held  at  Chambersburg.  By  this  act  the  circuit 
courts  were  abolished,  and  the  cases  undetermined 
therein  relegated  to  the  common  pleas  or,  where  appeals 
were  pending,  to  the  supreme  court.  The  number  of 
judges  of  the  supreme  court  was  reduced  from  four  to 
three.  By  another  supplement  to  the  Act  of  1806, 
enacted  in  1810,^  the  original  jurisdiction  of  the  supreme 
court  was  restored  in  Philadelphia  County  in  cases 
involving  over  $500,  the  judges  being  required  to  hold 
nisi  prius  courts  there  thirty-three  weeks  in  the  year. 

To  dispose  of  the  accumulation  of  business  a  new 
court  called  the  district  court  was  created  for  the  city 
and  county  of  Philadelphia,  by  the  Act  of  March  30, 
181 1,"*  to  consist  of  a  president  and  two  assistant  judges 
with  power  to  hear  and  determine  all  civil  pleas  and 
actions  where  the  sum  in  controversy  exceeded  one 
hundred  dollars.  The  act  was  experimental  and  limited 
to  six  years,  but  the  court  was  such  an  unqualified 
success  that  it  was  continued,  made  permanent,  and 
similar  courts  established  later  in  Pittsburg  and  Lan- 
caster. From  the  first  this  court  absorbed  the  most 
important  legal  business  of  the  county  and  acquired 
an  "enduring  reputation  as  a  great  law  court  for  the 
trial  of  civil  issues,"^  the  greatest  this  commonwealth 
has  ever  seen;  but  the  names  of  its  most  famous  judges 
belong  to  a  later  period. 

No  further  experiments  were  tried  with  the  supreme 
court  until  1820,  when  an  act  was  passed  increasing  the 

'  4  Smith's  Laws  of  Pennsylvania,  448. 

^  March  11,  1809,  5  Smith's  Laws  of  Pennsylvania,  15. 

3  March  10,  1810,  5  Smith's  Laws  of  Penn.sylvania,  158. 

■•  5  Smith's  Laws  of  Pennsylvania,  223. 

*  Martin's  Bench  &  Bar,  78. 


138     EARLY  COURTS  OF  PENNSYLVANIA. 

number  of  justices  to  five  and  restoring  the  circuit 
courts.'  The  cup  of  that  overworked  body  was  now 
full.  They  were  required  to  hear  all  cases  of  error  and 
appeal  sitting  in  six  districts,  to  hold  a  court  of  nisi 
prius  in  Philadelphia,  to  go  on  circuit  through  the 
counties,  beside  exercising  original  jurisdiction  in  cases 
of  quo  warranto  and  mandamus.  Relief  came  in  the 
Act  of  April  14,  1834,^  passed  on  the  recommendation 
of  the  commissioners  appointed  to  revise  the  civil  code. 
Circuit  courts  were  finally  abolished  and  the  number  of 
districts  reduced  to  four  (the  eastern  at  Philadelphia, 
northern  at  Sunbury,  middle  at  Harrisburg  and  western 
at  Pittsburg) ;  courts  of  nisi  prius  continued  to  be  held 
twice  a  year  in  Philadelphia  by  a  single  justice  for  the 
trial  of  civil  actions  involving  more  than  five  hundred 
dollars,  reviewable  by  the  court  in  banc  upon  motions 
for  new  trial  or  in  arrest  of  judgment. 

At  the  risk  of  being  tedious  we  have  briefly  reviewed 
the  many  changes  in  the  judiciary  system  between  the 
Revolution  and  the  revision  of  the  civil  code  in  1834- 
36,  touching  on  these  acts  in  but  a  cursory  manner 
without  attempting  to  point  out  many  important  fea- 
tures which  were  incorporated  into  later  legislation  and 
became  a  permanent  part  of  the  system.  The  changes 
made  were  many  of  them  experimental,  some  met  with 
success,  others  were  doomed  to  failure;  they  were  forced 
by  the  extraordinary  growth  of  the  commonwealth  in 
population  and  wealth  and  the  increase  in  the  amount 
and  importance  of  the  business  of  the  courts.  The 
law  of  real  estate  still  had  first  place,  land  was  the  prin- 
cipal asset  of  the  inhabitants,  and  the  loose  methods 
of  the  land  office  were  an  invitation  to  litigation,  not  to 

1  April  8,  1826,  P.  L.  265. 

2  P.  L.  341.  See  Fourth  Report  of  the  Commission  to  Revise 
the  Civil  Code  (1834).  The  northern  district  of  the  supreme 
court  was  afterwards  abolished. 


EARLY  COURTS  OF  PENNSYLVANIA.     139 

speak  of  the  additional  complications  arising  from 
Connecticut  and  Virginia  titles.  Ejectments  innumer- 
able occupied  the  attention  of  the  courts.  But  commer- 
cial law  was  every  day  becoming  more  important, 
particularly  in  Philadelphia,  then  the  first  city  in  the 
country  and  for  some  years  the  nation's  capital.  The 
legal  profession  enjoyed  great  prosperity  during  the 
early  days  of  independence;  recklessness  and  paper 
money  inflation  had  increased  private  debts  to  an 
enormous  extent  and  this,  with  the  settlement  of  the 
loyalists'  estates,  filled  the  dockets  with  more  cases  than 
could  be  tried.  This  naturally  led  to  envy  and  jealousy 
of  the  bar,  which  in  Massachusetts  culminated  in  riots 
directed  against  the  courts,  an  incident  referred  to  in 
history  as  Shays'  rebellion.* 

In  Pennsylvania  there  was  no  open  attack  on  the 
courts  while  McKean  was  chief  justice,  whose  stem 
judicial  deportment  and  inflexible  courage  were  suffi- 
to  awe  the  mob.  No  one  could  doubt  his  devotion  to 
the  cause  of  independence,  but  if  a  democrat  in  theory 
he  was  an  aristocrat  in  bearing.  David  Paul  Brown 
relates^  that  "shortly  after  his  appointment,  a  petition 
was  presented  to  him  directed  to  the  Right  Honorable 
Thomas  McKean,  Esq.,  lord  chief  justice  of  Pennsyl- 
vania, upon  which  he  complacently  observed — 'these 
are,  perhaps,  more  titles  than  I  can  fairly  lay  claim  to, 
but  at  all  events  the  petitioner  has  erred  on  the  right 
side.'  "  Court  was,  in  his  time,  opened  with  great 
ceremony  and  form,  and  the  chief  justice  held  the 
attendants  to  a  rigid  observance  of  duty.  There  are 
several  cases  which  illustrate  this  jealousy  of  the  author- 
ity of  the  court,  of  which  the  famous  libel  case  Respublica 


'  McMaster's   History  of  the  American   People,  Vol.   I,   302, 
et  seq. 

'^The  Forum,  Vol.  I,  327. 


140     EARLY  COURTS  OF  PENNSYLVANIA. 

V.  Oswald,^  may  be  taken  as  an  example,  as  well  as  the 
following  incident  stated  by  Brown  to  have  occurred 
in  1778.  The  chief  justice  had  issued  a  warrant  for  the 
arrest  of  Colonel  Robert  L.  Hooper,  a  deputy  quarter- 
master, on  a  charge  of  libel.  Colonel  Hooper  informed 
General  Greene,  who  wrote  to  the  chief  justice  stating 
that  there  was  no  one  to  fill  the  colonel's  place  and 
requesting  that  he  might  be  permitted  to  enter  into  a 
recognizance  to  appear  at  court  later.  The  chief  justice 
replied  as  follows: — 

"Yorktown,  June  9th,  1778. 

"Sir: — I  have  just  now  received  your  favor  of  the  3d  inst., 
and  am  not  a  little  surprised  that  the  sheriff  of  Northampton 
county  should  have  permitted  Colonel  Robert  L.  Hooper,  after 
he  was  arrested  by  virtue  of  my  precept,  to  wait  upon  you  until 
he  appeared  before  me. 

"You  say,  sir,  'Colonel  Hooper  waited  upon  me  to  communi- 
cate his  situation,  and  to  know  if  the  circumstances  of  the  army 
would  admit  of  his  absence;  but,  as  the  army  is  just  upon  the 
wing,  and  part  of  it  will,  in  all  probability,  march  through  his 
district,  I  could  not,  without  great  necessity,  consent  to  his 
being  absent,  as  there  is  no  other  person  that  can  give  the 
necessary  aid  upon  this  occasion.' 

"I  do  not  think,  sir,  that  the  absence,  sickness,  or  even  death 
of  Mr.  Hooper  could  be  attended  with  such  a  consequence,  that 
no  other  person  could  be  found  who  could  give  the  necessary 
aid  upon  this  occasion;  but  what  attracts  my  attention  the 
most,  is  your  observation  that  you  cannot,  without  great  neces&ity 
consent  to  his  being  absent.  As  to  that,  sir,  I  shall  not  ask 
your  consent,  nor  that  of  any  other  person,  in  or  out  of  the  army, 
whether  my  precept  shall  be  obeyed  or  not  in  Pennsylvania. 

"The  warrant  for  the  arrest  of  Mr.  Hooper  being  special,  no  other 
magistrate  can  take  cognizance  thereof  but  myself.  The  mode 
you  propose,  of  giving  bail,  cannot  be  adopted,  for  many  reasons. 

"I  should  be  very  sorry  to  find  that  the  execution  of  criminal 
law  should  impede  the  operations  of  the  army,  in  any  instance; 
but  much  more  so  to  find  the  latter  impede  the  former. 
"I  am,  sir,  with  much  respect, 

"Your  most  obedient,  humble  servant, 

Thomas  M'Kean."^ 

1  1  Dallas's  Reports,  319  (1788). 

2  The  Forum,  Vol.  I,  330. 


EARLY  COURTS  OF  PENNSYLVANIA.     141 

In  1799  McKean  was  elected  governor  and  was  suc- 
ceeded on  the  bench  by  Judge  Shippen,  then  seventy- 
years  old,  who  had  studied  under  Tench  Francis  and  at 
the  Middle  Temple.  Chief  Justice  Shippen  was  a  patient, 
practical  and  discriminating  law}^er  and  it  was  from  his 
notes  that  the  first  reported  cases  in  Pennsylvania  were 
taken.  He  indeed  formed  a  connecting  link  between 
the  courts  of  the  province  and  those  of  the  common- 
wealth, having  sat  on  the  bench  during  both  periods. 
This  very  fact,  which  caused  him  to  be  venerated  by 
the  bar,  was  calculated  to  increase  the  hatred  with 
which  he  and  his  colleagues,  Yeates  and  Smith,  were 
regarded  by  the  radical  politicians.  The  three  judges 
from  their  wealth  and  social  connections  were  regarded 
as  representatives  of  the  old  aristocracy,  while  the  defeat 
of  the  Federalist  party,  in  1799,  left  those  who  had 
taken  office  in  its  day  of  power  exposed  to  all  the  dangers 
of  political  revenge.  The  tenure  of  the  judiciary  was 
for  life  and  it  filled  the  earnest  partisans  of  the  new 
democracy  with  rage  to  see  all  the  places  on  the  bench 
filled  with  those  whose  sentiments  were  scarcely  less 
detested  than  those  of  the  Tories. 

The  first  to  be  marked  for  attack  was  Alexander 
Addison,  president  judge  of  the  fifth  judicial  district, 
which,  when  formed  in  1791,  comprised  Westmoreland, 
Fayette,  Washington  and  Allegheny  Counties,  all  of 
the  western  part  of  the  state.  Addison,  a  Scotchman 
by  birth,  had  been  educated  for  the  ministry,  but  had 
changed  to  the  law,  and  while  practicing  in  the  western 
counties  had  served  as  a  member  of  the  convention  that 
framed  the  Constitution  of  1790.  An  aggressive  Federal- 
ist, his  views  were  out  of  harmony  with  those  of  the 
greater  portion  of  the  local  population,  while  his  strong 
opposition  to  the  Whiskey  Insurrection  did  not  increase 
his  popularity  with  the  rough  inhabitants  of  that  wild 
region.     It  was  Addison's  habit  to  deliver  political  ser- 


142     EARLY  COURTS  OF  PENNSYLVANIA. 

mons  from  the  bench  under  the  guise  of  charges  to  the 
grand  jury.  These  interminable  discourses  were  pub- 
Hshed  and  greatly  admired  by  the  Federalists,  but 
detested  by  the  Democrats,  who,  in  attending  court  as 
parties  or  jurors,  were  obliged  to  listen  respectfully  to 
the  heavy  campaign  literature  of  their  opponents.^ 
Judge  Addison  was  particularly  fond  of  dwelling  upon 
the  enormities  of  the  French  revolutionists  as  a  warning 
to  good  citizens  against  those  admirers  of  that  revolution 
who  were  prominent  among  the  Anti-Federalists.  Aside 
from  these  foibles,  Addison  was  an  able,  upright  and 
energetic  judge,  and  had  toiled  ceaselessly  to  bring 
order  out  of  confusion  in  the  western  district.  His 
learning  was  regarded  with  respect  by  the  bar  and  his 
firmness  had  won  the  confidence  of  the  better  class  of 
citizens.  When  the  party  of  Jefferson  triumphed  in 
1799,  Addison  was  the  first  victim  of  their  revenge.  His 
leading  enemy  was,  like  himself,  a  theologian  who  had 
turned  to  the  law,  had  built  up  an  extensive  practice 
and  had  just  been  appointed  to  the  supreme  court, 
Hugh  Henry  Brackenridge,  of  whom  more  hereafter. 

Instigated  by  Brackenridge,  John  B.  C.  Lucas,  a 
justice  of  the  peace,  unlearned  in  the  law,  at  the  court 
of  quarter  sessions  of  Allegheny  County,  attempted 
to  address  the  grand  jury  and  was  prevented  by  Judge 
Addison  on  the  ground  that  in  such  matters  the  presi- 
dent judge  was  the  mouthpiece  of  the  court.  Lucas 
brought  the  matter  before  the  supreme  court  on  a  motion 
for  leave  to  file  an  information  against  Addison  for 
misconduct  on  the  bench,  but  the  court  declined  to 
interfere,  although  of  opinion  that  the  associate  judges 
had  a  right  to  express  their  opinions.-  Lucas  again 
attempted,  at  the  court  held  June  22,  1801,  to  address 

'  See  specimens  of  these  charges  in  Appendix  to  Addison's 
Report. 

^Commonwealth  v.  Addison,  4  Dallas's  Reports,  225   (]801). 


EARLY  COURTS  OF  PENNSYLVANIA.  143 

the  grand  jury  and  was  again  prevented  by  Judge  Addi- 
son with  the  concurrence  of  another  colleague.  The 
paper  Lucas  intended  to  read  had  nothing  to  do  with 
the  duties  of  the  jury,  but  contained  some  trifling 
remarks  of  a  semi-political  nature,  composed  per- 
haps by  Brackenridge.^  For  this  act  Addison  was 
impeached  by  the  house  of  representatives  on  Janu- 
ary 26,  1803,  convicted  by  the  senate,  by  a  vote  of 
twenty  to  four,  and  sentenced  to  be  removed  from  ofhce 
and  forever  disqualified  from  holding  the  office  of  judge 
in  the  commonwealth.  Judge  Agnew  has  described  this 
trial  as  "the  most  flagitious  ever  urged  on  by  vicious 
hate  and  obnoxious  partisanship,"^  and  the  conduct 
of  the  legislature  in  this  matter  has  met  with  general 
reprobation.  Under  the  circumstances  Addison  had 
acted  perhaps  injudiciously,  but  his  purpose  was  to 
preserve  the  dignity  of  the  court  and  the  punishment 
he  received  was  unreasonably  harsh. 

Having  tasted  blood,  the  legislature  next  turned  its 
attention  to  the  supreme  court.  In  February,  1803,  a 
petition  was  presented  to  the  house  of  representatives 
by  one  Thomas  Passmore,  complaining  that  he  had 
been  arbitrarily  fined  and  imprisoned  for  a  constructive 
contempt  of  court  in  violation  of  the  bill  of  rights  and 
praying  for  the  impeachment  of  the  judges  who  had 
taken  part  in  the  proceedings.  The  matter  went  over 
to  the  following  session  when  it  was  referred  to  a  com- 
mittee which  recommended  the  impeachment  of  Chief 
Justice  Shippen  and  Justices  Yeates  and  Smith,  and 
accordingly,  articles  of  impeachment,  adopted  on  March 
23,  1804,  were  presented  to  the  senate.  On  January  5, 
1805,  at  Lancaster,  then  the  capital  of  the  state,  the 


'  See  the  printed  report  of  Addison's  Trial  (1803). 
^Address  before  the  Allegheny  Bar  Association,  Pennsylvania 
Magazine,  Vol.  xvi,  1. 


144     EARLY  COURTS  OF  PENNSYLVANIA. 

trial  began.  The  cause  of  this  impeachment  was  a 
proceeding  in  the  supreme  court,  which  will  be  found 
reported  in  the  case  of  Bayard  v.  Passmore.^  The  brig 
Minerva  belonging  to  Passmore,  which  had  been  insured 
in  1801  by  certain  underwriters  including  the  firm  of 
Petit  and  Bayard,  sprang  a-leak  and  put  into  New 
Brunswick  where  Passmore  abandoned  her  to  the 
underwriters.  Some  of  the  latter  refused  to  pay  on  the 
ground  that  the  vessel  was  unseaworthy  when  she 
sailed.  An  amicable  action  was  entered  and  the  matter 
referred  to  arbitrators,  who  made  an  award  in  favor 
of  the  plaintiff.  Judgment  was  entered  on  the  award 
and  a  fi.  fa.  issued,  but,  on  motion,  the  execution  was 
set  aside,  and  a  rule  granted  to  set  aside  the  award,  on 
exceptions  filed  by  the  defendant.  These  exceptions 
were  based  partly  on  irregularities  in  the  proceedings 
and  partly  on  the  merits  of  the  case.  While  the  excep- 
tions were  pending,  Passmore,  who  seems  to  have  been 
exasperated  at  the  delay,  posted  on  a  board  in  the 
exchange  room  of  the  city  tavern  the  following  notice : — 

"The  subscriber  publicly  declares,  that  Petit  and  Bayard,  of 
this  city,  merchants  and  quibbling  underwriters,  has  basely 
kept  from  me  the  said  subscriber  for  nine  months  about  500 
dollars,  and  that  Andrew  Bayard,  the  partner  of  Andrew  Petit, 
did  on  the  3d  or  4th  inst.  go  before  John  Inskeep,  esq.,  aldermen, 
and  swore  to  that  which  is  not  true,  by  which  the  said  Bayard 
and  Petit  is  enabled  to  keep  the  subscriber  out  of  his  money 
for  about  three  months  longer,  and  the  said  Bayard  has  meanly 
attempted  to  prevent  others  from  paying  the  subscriber  about 
2500  dollars  but  in  this  mean  and  dirty  action  he  was  disappointed 
in;  I  therefore  do  pubUckly  declare,  that  Andrew  Bayard  is 
a  liar,  a  rascal  and  a  coward,  and  do  offer  two  and  a  half  per 
cent,  to  any  good  person  or  persons  to  insure  the  solvency  of 
the  said  Bayard  and  Petit  for  about  four  months  from  this  date. 

"Philadelphia,  September  8,  1802. 

"Thomas  Passmore." 


'  3  Yeates's  Reports,  438  (1802). 


EARLY  COURTS  OF  PEXXSYLVANIA.     145 

Thereupon  Mr.  Dallas,  the  attorney  for  Bayard  and 
Petit,  moved  for  an  attachment  against  Passmore  for 
contempt  of  court,  which  was  granted  and  interrogatories 
filed,  which  Passmore  answered.  On  the  issuing  of  the 
attachment  the  court  expressed  its  opinion  that  an 
apology  was  due  to  the  defendants.  The  answer  of 
Passmore  disclaimed  any  intention  to  treat  the  court 
with  contempt  and  admitted  that  the  paper  had  been 
posted  in  a  moment  of  irritation  but  declined  to  make 
an  apology  to  the  defendants.  It  was  argued  that  there 
was  no  suit  pending  when  the  notice  was  posted,  the 
proceedings  having  closed  with  the  award  of  the  arbi- 
trators, but  the  court  held  otherwise,  being  of  the  opinion 
that  a  contempt  had  been  committed.  As  Passmore. 
declined  to  make  any  atonement  to  the  injured  indi^ 
viduals  which  would  influence  the  court  to  leniency,  he 
was  sentenced  to  pay  a  fine  of  fifty  dollars  and  suffer 
imprisonment  for  thirty  days.  This  sentence  was 
carried  out. 

As  the  law  then  stood  Passmore  was  clearly  guilty, 
and  even  if  not,  the  sentence  was  given  after  a  patient 
hearing  and  full  argument  and  amounted  at  most  to  an 
error  of  law,  for  which  Passmore  had  a  remedy  by  appeal 
to  the  high  court  of  errors  and  appeals,  a  point  upon 
which  he  was  advised  by  William  Lewis,  one  of  the 
leaders  of  the  bar.  But  this  remedy  was  not  pursued. 
Passmore  paid  his  fine,  served  his  sentence  and  sought 
revenge  by  the  aid  of  a  partisan  assembly. 

When  the  time  of  the  trial  arrived  public  feeling  had 
turned  in  favor  of  the  judges,  the  better  class  of  news- 
papers took  their  side  and  the  bar  rallied  to  their  defense; 
in  fact  the  assembly  found  it  impossible  to  procure 
eminent  local  counsel  to  assist  them  in  their  odious  task 
and  Ca;sar  A.  Rodney  of  Delaware,  was  retained  for  the 
prosecution.  The  defendants  were  represented  by  Jared 
Ingersoll  and  Alexander  J.  Dallas. 


146     EARLY  COURTS  OF  PENNSYLVANIA. 

The  trial  began  on  the  eighth  of  January,  1805,  and 
lasted  until  the  twenty-eighth  of  the  month. ^  Many 
witnesses  were  called  and  all  the  litigation  which  gave 
rise  to  Passmore's  commitment  was  minutely  reviewed. 
In  summing  up  Mr.  Boileau,  one  of  the  managers  for  the 
house,  argued  that  Passmore  had  not  been  punished 
because  he  had  committed  a  conteinpt  of  court  but 
because  he  would  not  apologize  to  Bayard,  and  declared 
that  the  court  had  no  authority  to  direct  one  individual 
to  apologize  to  another.  His  address  was  a  violent 
attack  on  English  precedents  and  the  legal  profession 
in  general,  with  the  usual  platitudes  on  the  rights  of 
man  and  the  principles  of  the  Revolution.  Mr.  Rod- 
ney's speech  was  more  dignified  and  it  is  apparent  that 
his  task  was  uncongenial.  For  the  defense  the  speeches 
of  Dallas  and  Ingersoll  were  brilliant  and  exhaustive, 
replete  with  reported  precedents  as  well  as  manuscript 
records,  which  their  industry  had  discovered  and  which 
throw  much  light  on  the  early  practice  of  the  courts 
in  attachments.  That  any  doubt  could  be  felt  as  to  the 
issue  of  this  trial  is  a  matter  for  wonder,  and  that 
thirteen  out  of  twenty-four  senators  voted  for  convic- 
tion is  a  lasting  disgrace  to  their  names.  Fortunately, 
the  prosecutors  failed  by  three  votes  to  obtain  a  two- 
thirds  vote,  and  the  judges  were  declared  acquitted. 

One  incident  of  the  trial  deserves  mention.  Judge 
Brackenridge  was  not  on  the  bench  when  the  motion 
for  the  attachment  of  Passmore  was  made,  and  at  the 
time  of  the  argument  was  returning  from  a  special  court 
in  Northumberland  County,  but  was  present  when  sen- 
tence was  passed.  He  was  not  included  in  the  impeach- 
ment, but  at  once  wrote  to  the  house  of  representatives 
stating  that  he  concurred  in  the  opinion  of  his  brethren, 
and  while  not  courting  prosecution,  could  see  no  distinc- 

1  See  printed  report  of  the  Judges'  Trial  (1805). 


EARLY  COURTS  OF  PENNSYLVANIA.     147 

tion  in  his  case  and  asked  to  be  included  in  the  impeach- 
ment. The  house  sent  up  an  address  to  Governor  Mc- 
Kean  for  his  removal,  which  was  refused,  and  when  a 
committee  urged  that  the  term  in  the  constitution  "may 
/  remove"  meant  "must  remove,"  he  replied  that  he  would 
have  them  know  that  "may"  sometimes  meant  "won't."^ 
This  offer  to  stand  impeachment  with  his  colleagues 
was  the  most  courageous  act  in  the  public  career  of  the 
most  eccentric  genius  that  ever  sat  on  our  supreme  bench, 
about  whom  a  few  words  may  be  interesting.  Hugh 
Henry  Brackenridge,  born  in  Scotland,  of  poor  parents, 
was  brought  as  a  child  to  this  country.  By  teaching 
school  he  saved  enough  to  attend  Princeton  College, 
where  he  became  a  tutor,  studied  divinity  and  later 
served  as  a  chaplain  in  the  Revolutionary  army.  In 
1778  he  commenced  the  study  of  law  with  vSamuel  Chase, 
afterwards  a  justice  of  the  supreme  court  of  the  United 
States,  and,  locating  at  Pittsburg,  soon  became  a  leader 
of  the  western  bar.  During  the  whiskey  insurrection 
Brackenridge's  conduct  was  not  free  from  suspicion. 
His  opinions  were  opposed  to  the  excise  tax,  and,  if  he 
did  not  join  the  insurgents,  he  did  not  take  a  very  firm 
stand  against  them.  He  was  marked  for  arrest  by 
Hamilton,  but  was  saved,  it  is  said,  by  James  Ross, 
the  rival  bar  leader  of  the  western  district,  afterwards 
United  States  senator.  At  the  bar  Brackenridge  was 
noted  for  his  shrewdness,  wit  and  eloquence,  and  was  a 
writer  of  considerable  talent;  "Modern  Chivalry,"  a 
satirical  work  from  his  pen,  has  gone  through  several 
editions.  On  the  bench  he  did  not  display  the  same 
power  as  at  the  bar;  his  opinions  were  racy,  but  not 
profound  and  failed  to  do  justice  to  his  real  learning;  an 
untiring  student,  his  dislike  of  convention  led  him  at 
times  into  a  show  of  flippancy.     The  enmity  between 

»  The  Forum,  Vol.  I,  4CS. 


14S     EARLY  COURTS  OF  PENNSYLVANIA. 

Judges  Yeates  and  Brackenridge  was  a  curious  incident 
of  the  times.  It  probably  dated  from  the  time  of  the 
whiskey  insurrection  when  Yeates  served  as  one  of  the 
commissioners  to  deal  with  the  insurgents.  No  two 
men  were  ever  more  dissimilar  in  appearance,  habits 
and  opinions:  Judge  Yeates  a  tall,  florid,  portly  man, 
rich,  aristocratic  and  fond  of  society;  Brackenridge  dark 
and  sallow,  of  moderate  means,  a  bookworm  and  recluse, 
and  absolutely  indifferent  to  his  appearance.  An  ex- 
amination of  the  reports  will  show  that  the  associates 
rarely  agreed,  and  the  position  of  Chief  Justice  Tilghman 
must  have  been  peculiarly  difficult.  Indeed  the  eccen- 
tricities of  Brackenridge,  if  half  the  traditions  are  true, 
would  almost  amount  to  insanity,  but  it  is  difficult  at 
this  day  to  say  whether  his  want  of  judicial  decorum 
arose  from  this  cause  or  from  his  utter  contempt  for 
social  conventions.  Among  the  odd  stories  told  of  him 
is  one  narrated  by  David  Paul  Brown  :^ — 

"During  the  time,  as  has  been  said,  the  circuits  existed,  a 
friend  of  the  judge,  riding  in  his  carriage  in  the  western  part 
of  the  state,  while  a  prodigious  storm  of  wind  and  rain  prevailed, 
saw  a  figure  approaching,  which  resembled,  what  might  be  con- 
ceived of  Don  Quixote,  in  one  of  his  wildest  moods;  a  man, 
with  nothing  on  but  his  hat  and  boots,  mounted  upon  a  tall, 
raw-boned  Rosenant,  and  riding  deliberately  through  the 
tempest.  On  nearer  approach  he  discovered  it  to  be  Judge 
Brackenridge,  and  upon  inquiring  what  was  the  cause  of  the 
strange  phenomenon,  Brackenridge  informed  him,  that  seeing 
the  storm  coming  on,  he  had  stripped  himself  and  put  the 
clothes  under  the  saddle;  'because,'  said  he,  'though  I  am  a 
judge,  I  have  but  one  suit,  and  the  storm,  you  know,  would 
spoil  the  clothes;   but  it  couldn't  spoil  me.' 

The  interminable  criticism  of  and  complaints  against 
the  judiciary  during  the  early  years  of  the  nineteenth 
century  were  in  a  large  measure  due  to  the  fact  that 

1  The  Forum,  Vol.  I,  404. 


EARLY  COURTS  OF  PEXXSYLVAXIA.     149 

judges   held  office   for  life.     The   same   processes   were 
to  be  seen  at  work  in  the  other  states,  culminating  in  the 
abolition  of  life  tenure  and  the  substitution  of  a  term  of 
office  varying,   under  the   different  constitutions,   from 
one  to  twenty  years.     In  Pennsylvania  this  result  was 
accomplished  by  one  of  the  constitutional  amendments 
adopted  in   1838,  by  which  the  terms  of  the  supreme 
court  judges  were  fixed  at  fifteen  3'ears  and  those  of  the 
common    pleas   judges   at   ten.     This   change   was   not 
adopted  without  vigorous  opposition  on  the  part  of  the 
leaders  of  the  bar^  and  is  a  subject  upon  which  opinions 
differ  today.     We   may  suspect   that,   however  loudly 
the   political   leaders   who   advocated  the   change   may 
have  declaimed  against  the  dangers  of  caste  prejudice, 
favoritism  and  despotic  conduct,  they  were  really  look- 
ing at  the  offices  with  envious  eyes  and  plotting  to  divert 
the  meagre  salaries  to  partisan  purposes.     This  was  the 
period    when    American    political    life,    in    its    outward 
aspects  at  least,  reached  its  lowest  depths  of  degrada- 
tion, and  that  the  judiciary  should  suffer  thereby  was 
inevitable.     Americans  had  yet  to  learn  that  democracy 
was  not  synonymous  with  vulgarity  and  provincialism, 
that  the  American  Revolution  had  not  severed  us  from 
the  traditions  of  our  race,  and  that  the  French  Revolu- 
tion had  not  emancipated  us  from  the  rules  of  social 
decorum.     The   American   "Sans   Culotte"  was  an  un- 
lovely type,   an  iconoclast  and  a  bitter  partisan,   and 
that  he  should  have  done  his  best  to  add  the  judiciary 
to  the  spoils  system  is  not  the  least  count  in  his  indict- 
ment. 

The  citation  of  English  decisions  in  the  opinions  of  the 
courts  greatly  exasperated  the  radical  element.  What 
were  these  precedents  but  the  rags  of  despotism,  who 
were  the  judges  that  had  rendered  them  but  tyrants, 


'  Debates  o£  Pennsylvania  Constitutional  Convention  of  1837, 
Vol.  X,  148  et  seq. 


150  EARLY  COURTS  OF  PENNSYLVANIA. 

sycophants,  oppressors  of  the  people  and  enemies  of 
liberty !  There  was  danger  that  our  courts  might  be 
contaminated  by  the  source  from  which  they  drew  their 
inspiration,  so  an  act  was  passed  March  19,  IS  10,^  which 
provided  that  it  should  not  be  lawful  to  read  or  quote 
in  any  court  of  this  commonwealth,  any  British  prece- 
dent or  adjudication  which  had  been  given  or  made 
subsequent  to  the  fourth  of  July,  1776,  except  those 
relating  to  maritime  law  or  the  law  of  nations.  Upon 
this  act  Judge  Brackenridge  wittily  remarked:^ — • 

"Were  it  not  that  I  should  be  unwiUing  to  enter  into  a  contest 
with  the  legislature,  where  pubUc  opinion,  or  prejudice  is  on 
their  side,  I  might  be  disposed  to  question  the  constitutionality 
of  this  act.  It  would  seem  to  be  abridging  the  right  of  the 
judiciary,  to  hear  all  reason  on  a  question  before  them. 

What  is't  to  us 

Though  it  were  said  by  Trismegistus  ? 

"But  if  we  are  to  hear  the  saying  of  a  lord,  years,  or  centuries 
ago;  and  before  the  4th  July,  1776,  why  not  what  another  lord 
has  said  since,  to  explain  or  contradict  the  adjudication?  The 
fact  is,  early  decisions  were,  many  of  them  narrow;  and  why 
drink  out  of  the  neck  of  a  gourd,  rather  than  out  of  an  open 
goblet;  more  especially  if  the  fountain  was  muddy,  out  of  which 
the  gourd  was  filled;  the  stream  of  law  in  that  country,  now 
runs  more  clear  in  particular  cases  than  centuries  ago;  and  it 
will  always  remain  so,  the  law  being  an  improvable  science." 

This  act  was  repealed  in  1836.^ 

It  may  be  said,  however,  for  those  who  railed  against 
the  courts,  that  many  of  the  lay  associate  judges  set 
anything  but  a  good  example  of  judicial  dignity,  and 
quarreled  even  to  the  point  of  coming  to  blows  and  drag- 

1  P.  L.  136.  See  similar  Act  in  New  Jersey  passed  in  1799. 
New  Jersey  Statutes  (1800),  436. 

2  Brackenridge's  Law  Miscellanies,  525. 

3  Act  of  March  29,  1836,  P.  L.  224. 


EARLY  COURTS  OF  PENNSYLVANIA.     151 

ging  each  other  from  the  bench. ^  The  law  judges,  who 
rode  the  circuits,  manfully  attempted  to  preserve  in  the 
log  court  houses  of  remote  counties  the  dignity  of  West- 
minster Hall,  and  added  to  their  unpopularity  with  the 
uncouth  inhabitants  by  instructing  them  in  manners  as 
well  as  in  the  law.  In  his  "Recollections  of  the  West,"^ 
Judge  Brackenridge's  son,  himself  also  a  judge,  gives  an 
amusing  picture  of  the  first  court  held  in  Butler  County. 
The  court  house  was  a  log  cabin  into  which  bench,  bar 
and  the  entire  village  population  were  crowded.  The 
audience  hung  from  the  rafters  like  bats,  and  when  these 
were  cleared  away  by  the  sheriff,  a  big  Irishman  objected 
to  being  removed.  The  Court  sentenced  him  to  an 
hour's  imprisonment  for  contempt,  whereupon  the  sheriff 
was  greatly  puzzled  as  to  what  he  should  do  with  his 
prisoner,  as  there  was  no  jail.  It  was  finally  decided 
that  he  should  be  incarcerated  in  a  pig  pen,  emptied  to 
prepare  a  feast  for  the  court,  but  the  prisoner  was  too 
much  for  his  captors  and  made  his  escape  into  the  brush. 
Rapid  as  was  the  tide  of  immigration  into  western 
Pennsylvania  it  was  only  by  slow  degrees  that  a  well 
organized  system  of  local  govehiment  was  introduced. 
Westmoreland  County,  comprising  most  of  the  western 
district,  was  established  in  1773  with  a  county  seat  at 
Hannastown,  but  the  confusion  incident  to  the  Revolu- 
tion and  the  boundary  dispute  between  Pennsylvania 
and  Virginia  retarded  the  growth  of  local  institutions. 
Court  was  held  at  the  house  of  Robert  Hanna  where 
petty  offenders  were  sentenced  to  the  pillory,  stocks  and 
whipping  post,  erected  before  the  log  jail.  The  first 
person,  it  is  said,  convicted  of  murder  and  hanged  west 
of  the  Alleghenies  was  an  Indian  of  the  Delaware  tribe 


>  McMaster's  History  of  the  American  People,  Vol.  Ill,  154. 
2  Recollections  of  the   West,   H.   M.   Brackenridge.      See  ex- 
tract in  Hazard's  Pennsylvania  Register,  Vol.  XIV,  172. 


152     EARLY  COURTS  OF  PENNSYLVANIA. 

named  Maniachatoga,  who  in  1785,  while  drunk,  killed 
a  white  man  near  Pittsburg.  At  the  trial  at  Hannas- 
town  he  was  defended  by  Brackenridge,  but  Chief 
Justice  McKean  who  presided  held  that  drunkenness  was 
no  excuse  and  the  defendant  suffered  the  extreme 
penalty  of  the  law.^  In  the  early  days  when  the  fifth 
judicial  district  embraced  practically  all  of  western 
Pennslyvania  litigation  was  slow,  owing  to  the  long 
intervals  between  the  terms  of  court  and  the  difficulty 
in  procuring  the  attendance  of  witnesses.  The  law 
judge  rode  the  circuit  from  county  to  county,  attended 
or  followed  by  the  members  of  the  bar,  who,  during  the 
sessions  of  court,  generally  put  up  at  one  tavern  and 
made  a  lively  time  of  it. 

During  the  early  years  of  the  nineteenth  century  the 
supreme  court  was  presided  over  by  chief  justices  of 
reputation  equal  to  any,  and  superior  to  most  of  those 
who  have  sat  in  American  state  courts,  Tilghman  and 
Gibson.  William  Tilghman  came  of  a  family  of  distin- 
guished lawyers ;  his  father  was  secretary  of  the  provin- 
cial land  office,  and  his  maternal  grandfather,  Tench 
Francis,  the  bar  leader  of  the  provincial  court  of  his 
time.  His  first  judicial  appointment  was  by  President 
Adams  on  March  3,  ISOl,  to  the  circuit  court  of  the 
United  States  for  this  circuit;  hence  he  was  one  of  the 
so-called  "midnight  judges,"  commissioned  a  few  hours 
before  Jefferson  took  office,  and  legislated  out  of  office 
in  the  following  year.  In  180G  he  was  appointed  chief 
justice  by  Governor  McKean  on  the  recommendation 
of  his  cousin,  Edward  Tilghman,  who  declined  the  office. 
His  appointment  gave  offense  to  some  of  the  minor 
Democrats,  but  the  governor,  although  a  leading  mem- 
ber of  that  party,  having  once  made  up  his  mind  on  the 
subject,  was  not  to  be  moved. 

'  History  of  Allegheny  County  (Errett),  chapter  xiv. 


EARLY  COURTS  OF  PENNSYLVANIA.  L53 

"A  committee,  consisting  of  Duane,  Lieper,  and  others,  were 
appointed  by  a  town  meeting  to  wait  upon  him,  to  inform  him 
that  the  democracy  of  Philadelphia  were  utterly  opposed  to  the 
nomination  of  William  Tilghman  as  chief  justice  of  Pennsylvania. 
The  committee  were  introduced  into  the  executive  apartments, 
and  the  governor  received  them  in  his  civil  but  reserved  and 
aristocratic  manner,  treating  them  simply  as  his  constitutents; 
when,  however,  they  announced  themselves  as  the  representa- 
tives from  the  democratic  party — the  sovereign  people — he 
bowed  most  profoundly,  and  inquired  of  them  what  the  great 
democracy  of  Philadelphia  required  of  him.  They  proceeded, 
and  stated  the  purposes  of  their  delegation,  and  in  pretty  plain 
terms  gave  him  to  understand  that  the  appointment  of  Mr. 
Tilghman  would  never  meet  the  approval  of  the  democratic 
party.  'Indeed,'  said  the  governor,  'inform  your  constitutents 
that  I  bow  with  submission  to  the  will  of  the  great  democracy 
of  Philadelphia;  but  by  G — d,  WiUiam  Tilghman  shall  be  chief 
justice  of  Pennsylvania."' 

The  confidence  of  the  governor  was  justified  by  the 
long  and  distinguished  career  of  his  appointee,  whose 
judicial  decisions  are  marked  by  a  comprehensive  knowl- 
edge of  the  common  law  and  an  unusual  clearness  of 
diction.  "Other  Judges/'  says  Binney,  "may  have  had 
more  learning  under  their  immediate  command, — none 
have  had  their  learning  under  better  discipline,  or  in  a 
condition  more  effective  for  the  duty  upon  which  it  was 
employed."^ 

An  adequate  life  of  his  great  successor,  John  Bannister 
Gibson,  has  still  to  be  written.^  Appointed  to  the  com- 
mon pleas  in  1812  and  to  the  supreme  court  in  181G, 
of  which  he  became  chief  justice  in  1827,  his  reputation 
increased  with  years,   and  common  consent  assigns   to 


'  The  Forum,  Vol.  I,  343. 

^  See  Binney's  Eulogy  on  Chief  Justice  Tilghman,  IC  Sergeant 
&  Rawle's  Reports,  444. 

^^  See  Eulogies  in  Appendix  to  19  Pennsylvania  Reports; 
W.  A.  Porter's  Essay  and  article  in  Great  American  Lawvers 
Vol.   Ill,  353.  '      '  ' 


154     EARLY  COURTS  OF  PENNSYLVANIA. 

him  the  first  place  in  our  judicial  history.  "Abroad," 
said  Chief  Justice  Black,  "he  has  for  many  years  been 
thought  the  great  glory  of  his  native  state."  Chief 
Justice  Gibson  has  been  credited  with  an  abhorrence  of 
the  petty  and  prosaic  details  and  drudgery  of  the  law, 
qualities  that  would  have  militated  against  a  successful 
career  as  an  advocate,  but  given  a  problem,  no  judge 
could  grasp  it  more  firmly  or  dispose  of  it  more  readily, 
and  he  was  master  of  a  style  which  in  vigor  of  expression 
and  condensation  of  thought  is  unrivalled.  "When  he 
brought  the  lens  of  his  mind  to  a  focus,  its  power  was 
resistless."  For  one  act  in  his  career  he  was  subjected 
to  some  criticism.  The  constitutional  amendments  of 
1S3S  substituted  a  term  of  fifteen  years  for  life  appoint- 
ment and  the  commissions  of  the  judges  on  the  bench 
were  to  expire  at  intervals  of  three  years.  At  the  sug- 
gestion of  his  colleagues,  the  chief  justice  resigned  in 
1838,  and  was  immediately  reappointed,  and  thus, 
instead  of  holding  for  the  shortest  term,  enjoyed  the 
longest.  The  necessity  for  this  action  was  no  doubt 
humiliating  to  him,  who  could  hardly  have  resumed 
practice  at  that  period  of  his  life,  but  on  the  other  hand 
his  loss  to  the  state  would,  at  that  time  of  transition, 
have  been  irreparable,  and  when  his  term  expired  in 
1851,  he  was  re-elected  almost  without  opposition. 

If  space  permitted,  it  would  be  proper  to  say  some- 
thing of  the  bar  at  this  time,  which  was  particularly 
distinguished. 

During  the  greater  part  of  this  period  Philadelphia  was 
the  leading  city  of  the  nation,  both  in  population  and 
wealth,  and  the  achievements  of  the  local  bar  attracted 
national   attention.*     Such   leaders   as    William    Lewis, 


'  See  the  reprints  and  papers  contained  in  the  volume  com- 
memorative of  the  One  Hundredth  Anniversary  of  the  Phila- 
delphia Law  Association. 


EARLY  COURTS  OF  PENNSYLVANIA.     155 

Edward  Tilghman,  Jared  IngersoU,  William  Rawle, 
William  Bradford,  Alexander  James  Dallas,  and  Horace 
Binney,  both  in  private  practice  and  public  office,  ex- 
hibited talents  that  were  admired  and  esteemed  by  their 
contemporaries  and  served  as  models  for  their  students 
and  successors,  while  in  the  West  Albert  Gallatin,  James 
Ross  and  H.  H.  Brackenridge  attained  high  distinction. 
Indeed,  so  much  has  been  said  about  the  good  old  times, 
that  we  are  often  in  danger  of  minimizing  professional 
progress,  which,  in  the  nineteenth  century,  has  been  in 
the  nature  of  a  world-wide  forced  march  to  keep  pace 
with  the  flying  wheels  of  Father  Time's  steam  and  elec- 
tric chariots. 

The  first  bar  after  the  Revolution  was  a  very  remark- 
able body;  most  of  its  leaders  had  been  educated  at  the 
Inns  of  Court  or  in  offices  steeped  in  black-letter  tradi- 
tions. Devoted  to  the  common  law,  they  endeavored  to 
inspire  their  pupils  with  the  same  spirit.  Deprived  by 
legislative  shortsightedness  of  a  court  of  equity  they 
apphed  to  the  problem  of  working  out  equitable  relief 
through  common  law  forms  the  same  sort  of  ingenuity 
that  their  ancestors  had  exercised  in  the  invention  of 
fictions  to  overcome  the  inelasticity  of  common  law 
actions.  Masters  of  their  profession,  they  were  jealous 
of  all  innovation,  and  the  less  important  members  of 
the  bar  took  their  cue  from  the  leaders,  in  blissful  igno- 
rance of  the  issues  involved.  As  a  result  the  agitation 
for  codification  that  subsequently  swept  over  the  country 
was  but  faintly  echoed  in  Pennsylvania. 

In  pursuance  of  resolutions  adopted  by  the  legislature 
in  1830  a  commission  was  appointed  by  the  governor 
consisting  of  William  Rawle,  T.  I.  Wharton  and  Joel 
Jones,  to  revise,  collate  and  digest  all  such  public  acts 
and  statutes  of  the  civil  code  of  the  state  and  all  such 
British  statutes  in  force  in  the  state  as  were  general  and 
permanent  in  their  nature.     The  commission  made  a 


156  EARLY  COURTS  OF  PExNNSYLVANIA. 

series  of  reports  between  1831  and  ISod  with  drafts  of 
proposed  acts,  most  of  which  were,  with  some  modifica- 
tions, enacted  into  law.^  That  the  members  did  their 
work  thoroughly  and  well  is  proved  by  the  fact  that  the 
acts  passed  on  their  recommendation  are  the  basis  of 
the  present  jurisdiction  of  and  practice  in  the  courts  of 
the  commonwealth.  Their  work,  however,  consisted 
mainly  in  repairing,  restoring  and  strengthening  the 
existing  structure,  a  statutory  system  supplemented 
by  so  much  of  the  common  law  as  it  had  been  found 
expedient  to  incorporate  into  the  jurisprudence  of  a 
new  community.  Their  cautious  recommendations  ac- 
corded with  conservative  public  opinion,  and  the  house- 
cleaning  then  done  tended,  undoubtedly,  to  check  the 
sentiment  for  codification  which  has  had  such  extraor- 
dinary results  in  England  as  well  as  in  many  of  the 
states.^  Whether  this  is  a  blessing  or  a  curse  is  a  ques- 
tion upon  which  opinions  may  differ.  At  least,  it  may 
be  suggested  that  three-quarters  of  a  century  has  passed 
since  this  revision,  during  which  time  many  statutes 
have  been  enacted  which  do  not  add  clarity  to  the  law, 
and  that  it  may  be  worth  while  to  examine  some  of  the 
more  notable  procedural  reforms,  with  a  view  to  the 
introduction  of  such  methods  as  have  proved  unquali- 
fiedly successful  elsewhere  and  the  ultimate  simplifica- 
tion of  our  procedure,  in  the  interest  of  common  sense 
and  social  and  economic  progress.  Self-laudation  is  one 
of  our  professional  faults  that  frequently  leads  to  narrow 
views  and  unprogressive  provincialism.  A  peep  over 
our  neighbors'  fences  may  lead  us  to  the  horrifying  dis- 
covery that  we  are  provincial  in  many  respects. 

The  revision  of  the  civil  code  has  been  fixed  as  the 
limit   of  this   discussion   for  the   reason   that  there   are 

'  The  reports  of  the  commissioners  form  a  most  instructive 
'commentary  upon  the  early  statute  law  of  Pennsylvania. 

^  Hepburn's  Historical  Development  of  Code  Pleading  (1897). 


EARLY  COURTS  OF  PEXXSYLVAXIA.     157 

members  of  the  bar  who  can  speak  with  authority  from 
personal  recollection  upon  the  occurrences  during  the 
middle  nineteenth  century,  and  for  the  further  reason 
that  the  judicial  systein  had  by  that  time  assumed  a 
form  which  in  its  main  outlines,  it  still  retains,  subject 
to  the  changes  introduced  by  the  constitution  of  1874.^ 
Relief  has  since  been  afforded  to  the  supreme  court  by 
the  establishment  of  an  intermediate  court  of  appeal, 
the  superior  court,  and  the  transfer  to  the  latter  of  a 
part  of  the  appellate  business.^  Both  are  courts  for 
the  hearing  of  appeals,  none  of  the  judges  sitting  at 
nisi  ^prius,  an  arrangement  that  has  been  criticised  as 
tending  to  disassociate  the  appellate  judges  from  the 
main  body  of  the  judiciary,  in  contradistinction  to  the 
federal  system.  The  number  of  common  pleas  judges 
has  been  greatly  increased  and  the  lay  associate  has 
almost  disappeared.^ 

The  most  glaring  defect  in  the  system  is  in  the  minor 
judiciary.  The  magistrate,  or  justice  of  the  peace,  is  a 
relic  of  the  eighteenth  century  whose  intelligence,  edu- 
cation and  social  position  have  not  kept  pace  with  the 
general  improvement.  The  holding  of  courts  at  this 
day  by  men  unlearned  in  the  law  is  an  anachronism,  a 
nuisance  to  those  having  to  do  with  the  collection  of 
small  debts  and,  frequently,  a  source  of  oppression  to 
the  poor.  It  is  to  be  hoped  that  reform  in  this  respect 
will  not  be  unduly  delayed  by  the  necessity  for  the 
adoption  of  amendments  to  the  constitution  to  make  it 
complete. 

'  The  Judiciary  Article  of  the  Constitution  of  1874  is  printed 
in  the  Appendix  to  this  volume.  Special  pleading  was  aboUshed 
by  the  Act  of  May  25,  1887,  P.  L.  271,  which  substituted  a 
hybrid  system  that  is  neither  common  law  nor  good  code  pleading. 

'  Act  of  June  25,  1805,  P.  L.  212,  and  its  supplements. 

^  For  the  present  personnel  of  the  courts,  see  SmuU's  Legis- 
lative Handbook,  current  issue. 


158     EARLY  COURTS  OF  PENNSYLVANIA. 

The  early  division  of  the  state  into  judicial  districts 
has  had  some  unfortunate  consequences.  The  bar  of 
the  state  became  divided  into  a  number  of  local  bars, 
mutually  jealous  and  exclusive,  practicing  under  dis- 
similar rules,  without  common  interests  or  espirit  de 
corps.  The  tendency  to  disunion  has  been  checked  by 
the  formation  of  the  State  Bar  Association,  an  organiza- 
tion that  has  already  done  much  to  promote  uniform 
legislation  as  well  as  to  encourage  good  fellowship  in  the 
legal  fraternity.  The  appointment,  too,  by  the  supreme 
court  of  a  state  board  to  examine  candidates  for  admis- 
sion to  the  bar  has  done  much  to  standardize  .legal 
education  in  the  state. 

Owing  largely  to  her  great  natural  resources  Pennsyl- 
vania has  enjoyed  a  prosperity  in  which  both  bench  and 
bar  have  shared,  but  the  first  stages  of  that  pros- 
perity were  attained  through  the  liberal  and  farsighted 
policy  of  William  Penn,  the  founder.  His  adopted 
sons  should  at  least  be  willing  to  view  with  open 
minds  the  innovations  demanded  by  progress.  The 
panorama  from  the  housetop  does  not  necessarily  lead 
to  a  suicidal  leap  or  a  broomstick  ride. 


CHAPTER  IV. 

One  of  the  most  troublesome  questions  with  which  the 
colonial  administrator  had  to  deal  was  equity  juris- 
prudence. In  the  early  years  of  the  seventeenth  century 
politics  entered  into  the  contest  for  jurisdiction  between 
the  English  court  of  chancery  and  the  courts  of  common 
law,  beclouding  the  issues  and  retarding  a  settlement 
of  their  respective  spheres  of  action.  Popular  dislike 
pictured  the  chancellorship  as  a  great  political  ofhce 
closely  identified  with  the  Crown,  and  grudgingly  ad- 
mitted its  importance  in  the  complex  judicial  system 
of  England.  On  the  other  hand,  the  chancellor  too  fre- 
quently subordinated  the  judicial  functions  of  his  office 
to  ministerial  policy  and  permitted  abuses  in  the  organi- 
zation and  administration  of  his  court  that  impaired  its 
usefulness  and  checked  the  growth  of  its  business.  At 
this  early  period  chancery  practice  was  concerned 
chiefly  with  questions  connected  with  the  devolution 
and  management  of  real  property  and  property  held  in 
trust,  and  many  of  the  broader  doctrines  of  equity  were 
still  in  process  of  gro^N-th.  Lord  Nottingham,  the 
father  of  modern  equity,  held  the  office  of  chancellor 
from  1673  to  1682,  but  was  succeeded  by  several  chan- 
cellors of  inferior  capacity  who  added  nothing  to  the 
prestige  of  the  court,  while  the  masters  and  inferior 
officers  were  chiefly  distinguished  for  rapacity  and  extor- 
tion, not  to  speak  of  incompetency  and  dishonesty,  in  the 
management  of  property  committed  to  their  care. ^  Re- 
form came,  but  too  late  to  convince  the  more  democratic 
communities  of  the  positive  advantages  of  chancery 
procedure,   while   the   prevailing   fanatical   devotion   to 

'  Parkes's  History  of  the  High  Court  of  Chancery. 


im  KARLV  COURTS  OF  PENNSYLVANIA. 

trial  by  jury  c^pcrated  as  a  check  upon  any  system  that 
seemed  to  interfere  with  that  palladium  of  liberty. 

It  was  manifestly  impossible  to  administer  complete 
justice  according  to  the  English  system  without  the  asser- 
tion of  equitable  rights  and  the  enforcement  of  equita- 
ble remedies.-  Anything  less  would  have  amounted  to 
a  denial  of  justice,  and  in  so  far  as  some  few  equitable 
rights  were  concerned,  this  was  vaguely  recognized.  But 
a  true  appreciation  of  the  necessity  for  the  introduction 
of  chancery  procedure  was  obscured  by  a  common  and 
popular  error  which  confused  equity  with  so-called 
natural  justice;  an  error  for  which  chancery  literature 
was,  perhaps,  itself  in  a  measure  responsible,  in  basing 
its  claims  to  override  the  strict  rules  of  the  common 
law  upon  the  strength  of  an  intrinsic  ethical  superiority.^ 

Another  obstacle  to  the  introduction  of  equity  juris- 
prudence was  the  primitive  social  conditions  that  pre- 
vailed in  the  sparsely  populated  settlements.  There 
was  sufficient  difficulty  in  the  conduct  of  an  ordinary 
lawsuit  in  the  local  courts  without  adding  to  the  embar- 
rassment of  the  magistracy  by  requiring  them  to  solve 
the  mysteries  of  the  unreformed  chancery  pleading  and 
practice.  The  colonial  judge  of  the  seventeenth  and 
eighteenth  centuries  was  in  knowledge  and  training 
about  on  a  par  with  the  English  justice  of  the  peace 
and  it  would  have  been  as  preposterous  to  expect 
the  former  to  undertake  the  office  of  chancellor  as 
to  impose  similar  duties  on  the  English  quarter 
sessions.  When,  in  the  eighteenth  century,  trained 
lawyers  began  to  make  their  influence  felt  in  the  colonies, 
disputes  and  misunderstandings  between  the  assemblies 
and  the  gavernors  prevented  the  creation  of  or  retarded 
the  growth  of  courts  of  chancery,  resulting  in  a  conflict 
of  principles  and  practice  in  the  several  provinces  far 


*  Maine's  Ancient  Law,  chapter  3. 


EARLY  COURTS  OF  PENNSYLVANIA.     161 

too  intricate  to  be  briefly  described.^  The  theory 
upheld  by  the  crown  lawyers,  and  put  in  practice  in  the 
more  tractable  colonies,  was  that  the  governor,  as  cus- 
todian of  the  great  seal,  was  the  proper  person  to  act  as 
chancellor,  assisted  if  necessary  by  the  council.  To 
this  the  more  democratic  communities  were  opposed, 
as  an  undue  extension  of  the  prerogative,  but  they 
had  no  substitute  to  offer  except  the  direct  exercise  of 
equitable  relief  by  legislative  resolution  or  the  delega- 
tion of  limited  equity  powers  to  the  ordinary  courts, 
such  as  giving  relief  from  the  penal  clauses  of  bonds  and 
mortgages.  It  did  not  seem  difficult  to  the  uninitiated 
to  inject  into  the  law  such  equitable  principles  as  would 
mitigate  the  harshness  of  its  stricter  rules.  The  limited 
scope  of  such  an  experiment  and  the  deprivation  in- 
volved, in  the  elimination  of  the  powerful  preventive 
measures  afforded  by  chancery  process,  became  apparent 
only  when  the  commercial  and  industrial  expansion  of 
the  American  commonwealths  had  brought  about  more 
complicated  social  relations. 

The  reform  of  procedure  in  the  more  progressive  juris- 
dictions, has  buried  chancery  and  common  law  practice 
in  a  common  tomb  and  if  it  were  safe  to  hazard  an 
opinion  upon  the  parentage  of  the  modem  complaint, 
or  statement,  the  inclination  would  be  to  favor  the  bill 
in  equity  rather  than  the  common  law  declaration.  But 
it  would  seem  that  before  these  momentous  changes 
could  well  be  brought  about,  it  was  necessary  that  both 
systems  should  reach  the  limits  of  their  development, 
that  there  should  be  a  thoroughly  scientific  demonstra- 

*  Courts  of  Chancery  in  the  American  Colonies,  S.  D.  Wilson, 
American  Law  Review,  Vol.  XVIIL  226,  reprinted  in  Select 
Essays  in  Anglo-American  Legal  History,  Vol.  H,  779;  Story's 
Miscellaneous  Writings,  151.  History  of  Equity  in  the  American 
Colonies,  E.  B.  Gager,  in  Two  Centuries'  Growth  of  American 
Law,  chapter  6. 


162     EARLY  COURTS  OF  PENNSYLVANIA. 

tion  of  the  economic  waste  involved  in  a  dual  and  highly 
artificial  procedure,  before  one  more  simple  and  rational 
could  be  evolved.  Conservative  opinion  hesitates  to 
endorse  these  changes,  and  the  tendency,  displayed  in 
many  jurisdictions,  to  overload  procedure  with  petty 
statutory  details,  that  ought  to  be  left  to  the  rules  of 
court,  shows  an  immature  conception  of  the  principles 
of  law  reform.  If  this  is  true  today,  how  poorly  pre- 
pared was  the  eighteenth  century  for  experiments  in 
jurisprudence,  with  a  bar  nourished  on  technicalities 
and  trained  to  state  almost  every  legal  right  in  pro- 
cedural terms. 

Pennsylvania  was  one  of  the  most  persistent  of  the 
colonies  in  its  opposition  to  the  introduction  of  a  court 
of  chancery,  and  its  courts  were  the  most  fertile  in 
devising  expedients  to  decrease  the  inconveniences 
resulting  from  such  opposition,  and  this,  although  in 
the  immediately  adjoining  colonies  chancery  had  a 
fairly  successful  development.  In  the  early  period, 
political  conditions  had  much  to  do  with  the  failure  of 
the  only  serious  attempt  to  establish  such  a  court. 
After  the  Revolution,  opposition  to  the  extension  of 
equity  jurisdiction  long  continued  as  a  political  tradi- 
tion, in  spite  of  the  changed  attitude  of  the  leaders  of  the 
bar. 

While  the  territory  on  the  Delaware  was  under  the 
government  of  the  Duke  of  York  it  would  seem  to  have 
been  the  intention  to  administer  equity,  in  the  popular 
sense  of  that  word,  through  the  court  of  assizes.  Among 
the  laws  of  April  2,  1664,  was  one  that  provided: — 

"In  regard  it  is  almost  impossible  to  provide  Sufficient  Lawes 
in  all  Cases,  or  proper  Punishments  for  all  Crimes  the  Court  of 
Sessions  shall  not  take  further  Cognizance  of  any  Case  or  Crimes, 
whereof  there  is  not  provition  made  in  some  Lawes  but  to  remit 
the  case  or  Crime,  with  the  due  Examination  and  proof  to  the 
Next  Court  of  Assizes  where  matters  of  Equity  shall  be  decided. 


EARLY  COURTS  OF  PEXXSYLVAXIA.     163 

or   punishment    awarded    according    to    the    discretion    of    the 
Bench  and  not  Contrary  to  the  known  Laws  of  England. "^ 

This  was  amended  at  the  court  of  assizes  held  in 
September,  1665,  as  follows: — 

"Where  the  Originall  Point  is  matter  of  equity  the  proceede- 
ings  shall  bee  by  way  of  Bill  and  delivering  in  Answers  upon 
Oath  and  by  the  Examination  of  witnesses,  in  like  manner  as  is 
used  in  the  Court  of  Chancery  in  England.  And  due  regard 
must  be  had  that  the  Defendant  have  timely  notice  thereof,  as 
is  appointed  at  Common  Law;  which  is  eight  dayes  warning 
before  the  Court  shall  sitt."^ 

In  the  following  February  it  was  ordained  that 
"matters  of  Equity  under  five  pounds  may  be  tried  in 
Town  Courts  and  if  under  twenty  at  Sessions."  This 
investing  of  the  lower  courts  with  equitable  powers  was 
undoubtedly  intended  to  lessen  the  hardship  of  seeking  ■ 
relief  in  a  distant  court  meeting  but  once  a  year,  and  its 
practical  application  was  probably  limited  to  giving 
effect  to  the  more  obvious  equities  of  defendants.  That 
such  was  the  case,  would  appear  from  the  instructions 
of  Governor  Andros  to  the  justices  of  the  court  at  New 
Castle  dated  August  14,  1677,  in  reply  to  a  query  on 
their  part. 

"As  to  penal  Bonds  or  such  Hke  cases  of  Equity  it  is  the  cus- 
tom &  practice  of  Courts  here,  to  hear  &  judge  thereof  accord- 
ing to  Equity,  w^h  you  may  also  observe  as  Allowed  by  Law."* 

At  the  court  for  Deal,  after^\-ards  Sussex,  County  held 
Tune  13  and  14,  1682,  Henry  Stracher  obtained  a  verdict 
against  Peter  Groundyk  in  an  "action  of  the  case," 
the  nature  of  which  is  not  disclosed,  whereupon — 


'  Charter  and  Laws  of  Pennsylvania,  35. 
^  Charter  and  Laws  of  Pennsylvania,  61. 
^  V  Pennsylvania  Archives  (2d  series),  697. 


U)4     EARLY  COURTS  OF  PENNSYLVANIA. 

"Peter  Groundyk  peticon  the  Court  that  he  may  have  That 
was  this  day  Tryd  betwene  Henry  Stracher  Ant  this  peticoner  to 
be  Tryd  in  Equiety ,  the  next  Court  by  bill  and  Answer  as  is  use  in 
the  Court  of  Chancrey  in  England  which  the  Court  would  A 
perswaded  him  to  A  dissisted  in  it;  and  rest  hinaselfe  satisfied 
in  what  was  allready  done;  but  through  his  perswading  the 
Court  grant  the  peticoner  his  request;  provided  that  the  pro- 
ceeding be  put  in  in  due  time  According  to  Law."' 

At  the  September  court,  however,  nothing  is  recorded 
as  to  the  "Tryal  in  Equiety"  which  the  justices  seem  to 
have  been  reluctant  to  undertake. 

There  are  also  instances  where  the  governor  at  New 
York  assumed  the  equitable  power  of  granting  relief 
against  oppressive  judgments  at  law,  of  which  the  follow- 
ing order  is  an  illustration : — 

By  the  Governo"" 

Whereas  Hendrick  Jansen  Van  Bremen,  of  Swanyck  or 
Paerden  Hook,  near  Newcastle  in  Delaware  River,  hath  preferr'd 
a  Petition  unto  me  setting  forth,  that  having  heretofore,  in  the 
Time  of  the  Dutch,  received  great  Damage  in  his  Corne,  by 
Mr  Wm  Toms  Horses,  by  Reason  of  his  insufficient  Fence;  It  was 
Ordered,  that  Mr  Toms  Land  there,  should  be  Sold  in  Vendue, 
which  said  Order  being  not  effected.  The  Petitioner  since  the 
Restoration  of  the  English  Government,  took  the  said  Horses 
off  his  Land,  and  sent  them  to  Mr  Tom  at  New  Castle,  desiring 
they  might  be  kept  from  his  Corne;  But  the  Petitioner  still  sus- 
taining Damage,  without  Relief,  he  acknowledges  that  in  Pas- 
sion, he  rashly  and  unadvisedly,  shot  one  of  the  said  Horses, 
with  small  shot,  whereof  he  not  long  after  dyed;  Whereupon 
Mr  Tom  Sued  the  Peticonr  in  the  Court  of  Newcastle,  from  the 
which  Appealing  to  the  High  Court,  Judgment  past  against  the 
Peticonr  there  for  Six  Hundred  Guild's  to  be  paid  by  him  to  M' 
Tom,  for  his  Horse,  besides  One  Hundred  Guild's  Charges;  But 
was  neither  call'd,  nor  heard  there;  Wherefore  I  have  thought 
fitt,  &  do  hereby  Order,  that  the  said  Hendrick  Jansen  giving 
Security,  by  binding  over  his  Person  and  Estate,  to  makegood 
his  Complaint,  That  Execucon  be  Suspended;  And  that  all  the 

1  Sussex  County  Records  (Turner),  76. 


EARLY  COURTS  OF  PEXXSYLVANIA.     165 

Proceedings,  Pajjers,  Writings,  Passages  or  Proofs,  both  in  Dutch 
and  English  Time,  beforthwith  Transmitted  hither,  for  a  final 
Determinacon  in  Equity. 

Given  under  my  Hand  in  New  Yorke  this  25th  day  of  May 
1676. 

E;  AXDROS. 

To  the  Justices  of  the  Peace  of  Newcastle  in  Deleware."' 

A  petition  for  equitable  relief  preferred  by  Arnoldus 
la  Grange  to  Governor  Andros  in  connection  with  the 
litigation  concerning  the  title  to  Tinicum  Island  will  be 
found  in  the  archives,  but  the  action  taken  thereon  by 
the  governor  is  not  recorded.^ 

With  the  further  history  of  equity  in  New  York  we 
are  not  directly  concerned.  By  an  act  passed  soon  after 
the  separation  from  Pennsylvania  a  court  of  chancery 
was  authorized  but  the  law  seems  to  have  been  disre- 
garded.^ Lord  Bellomont,  the  governor,  writing  to  the 
lords  of  trade  October  19,  1700,  says:  "There  is  a  great 
want  of  a  court  of  chancery  here,  but  nobody  here  under- 
standing it  rightly  I  delay  appointing  one  till  the  judge 
and  attorney  general's  coming  from  England."''  The 
lords,  in  reply,  directed  him  to  establish  the  court  at 
once  and  in  the  following  year  the  court  was  proclaimed 
by  ordinance  of  his  successor.  Lieutenant  Governor 
Nanfan.  Nothing,  however,  of  importance  seems  to 
have  been  done  and  it  would  appear  that  some  of  the 
governors  disliked  the  responsibility.  Lord  Cornbury, 
who  was  also  appointed  royal  governor  of  New  Jersey, 
wrote  to  the  lords  of  trade  on  May  7,  1711: — ■ 

*  V  Pennsylvania  Archives  (2d  series),  679. 

*  VII  Pensnylvania  Archives  (2d  series),  799. 

3  Broadhead's  History  of  New  York,  Vol.  II,  385,  gives  the 
date  of  the  act  as  November  1,  1683.  It  appears  in  the  laws  of 
1694  as  of  1691.  Compare  preface  to  1  Johnson's  Chancery 
Reports  (N.  Y.). 

*  New  York  Colonial  Documents,  Vol.  IV,  882. 


166     EARLY  COURTS  OF  PENNSYLVANIA. 

"In  both  plantations  I  have  been  pelted  with  petitions  for  a 
Court  of  Chancery;  and  1  have  been  made  acquainted  with  some 
cases  which  very  much  require  such  a  court,  there  being  no 
relief  at  common  law,  I  had  ordered  the  committee  of  both 
Councils  to  form  a  scheme  for  such  a  court,  but  to  no  purpose; 
the  trust  of  the  seals  they  say  constitute  a  chancellor,  and  unless 
the  Governor  can  part  with  the  seals  there  can  be  no  chan- 
cellor but  himself.  I  have  already  more  business  than  I  can 
attend  to,  besides  I  am  very  ignorant  in  matters,  having  never 
in  my  life  been  concerned  in  any  one  suit.  So  I  earnestly  beg 
your  lordship's  directions  as  to  that  Court."* 

The  court  was  also  a  favorite  object  of  attack  by  the 
popular  party.  Governor  Hunter  on  January  1,  1712, 
wrote : — 

"The  country  here,  in  general,  groaned  for  a  Court  of  Chan- 
cery which  had  been  discontinued  for  some  time  before  my 
arrival  in  these  parts.  *  *  *  I  gave  a  public  notification  of 
that  court  being  opened,  and  the  House  of  Representatives,  in 
their  angn^  mood  resolved  that  the  erecting  of  such  a  court 
without  their  consent  was  against  law."^ 

In  spite  of  this  and  similar  attacks  the  court  main- 
tained its  existence  until  reorganized  after  the  Revolu- 
tion and  adoption  of  the  constitution  of  1777,  but  the 
amount  of  business  transacted  was  comparatively  small 
until  the  time  of  Chancellors  Livingston  and  Kent. 

In  Pennsylvania  and  Delaware,  as  we  have  seen, 
Penn  took  over  the  local  courts  very  much  as  he  found 
them,  exercising  a  supervisory  jurisdiction  through  the 
provincial  council.  On  the  hearing  of  appeals  before  the 
latter  body  equitable  principles  were  applied  as  is  illus- 
trated by  the  case  of  Bellamy  v.  Watson,  described  in 
the  court  below  as  "an  action  of  Trasspase  and  eject- 
ment" for  land  on  Prime  Hook.  The  case  was  tried  at 
Lewes  on  May  27,  1683,  before  a  jury  who  found  a  ver- 

1  IV  New  Jersey  Archives,  70. 

«  New  York  Colonial  Documents,  Vol.  V,  298. 


EARLY  COURTS  OF  PENNSYLVANIA.     167 

diet  for  the  defendant.^  The  plaintiff  appealed  to  the 
governor  and  council  who  heard  the  case  in  July  and 
were  unanimously  of  the  opinion  that  one  Smith,  under 
whom  the  defendant  claimed,  had  no  title  in  law  or 
equity.  They  entered  judgment  for  the  plaintiff,  he 
to  pay  the  defendant  for  his  improvements,  the  value 
of  which  was  to  be  fixed  by  appraisers,  and  gave  the 
defendant  four  months'  time  in  which  to  remove  his 
crops,  stock  and  "other  moveable  concemes."^  A  year 
later  it  is  recorded  that  the  difference  between  Watson 
and  Bellamy  was  amicably  settled  by  mutual  convey- 
ances, "and  thus  they  agreed  &  shaked  hands. "^  In 
another  case  that  came  before  the  council,  that  body 
seems  to  have  been  in  doubt  whether  they  ought  to 
proceed  in  law  or  equity,  but  the  nature  of  the  business 
is  not  given.* 

By  the  Act  of  May  10,  1G84,  passed  at  New  Castle,  it 
was  provided  that  the  "Quarter  Sessions  be  as  well  a 
court  of  Equity  as  Law,  Concerning  any  Judgment  given 
in  Cases  by  Law  capable  of  Triall  in  the  respective 
County  Sessions  and  Courts,"^  and  by  another  chapter 
of  the  same  act  a  provincial  court  was  constituted,  the 
judges  of  which  were  given  cognizance  of  appeals  and 
all  causes  both  in  law  and  equity  not  determinable  by 
the  county  courts.  This  enactment  seems  to  have  caused 
some  misgivings  for  in  16S5  the  council  "Ordered  that  a 
bill  be  drawn  up  That  y®  Word  Equity  be  left  out  in  ye 
Law  off  County  Courts.""  The  conception  of  equity 
then  entertained  is  illustrated  by  the  following  case 
taken  from  the  minutes  of  the  court  of  common  pleas  of 

'  Sussex  County  Records  (Turner),  97. 

2  I  Colonial  Records,  21,  4,  5  mo.  1683. 

3  I  Colonial  Records,  G5,  14,  6  mo.  1684. 
"  I  Colonial  Records,  63,  20  4  mo.  1684. 

''  Charter  and  Laws  of  Pennsylvania,  167. 
*  I  Colonial  Records,  75,  3,  2  mo.  1685. 


168     EARLY  COURTS  OF  PENNSYLVANIA. 

Chester  County,  where  the  court  sitting  in  equity,  modi- 
fied its  own  judgment  previously  entered  at  law. 

"Josua  Hastings  v.  Francis  Yarnall.  The  Declaration  was 
read — the  answer  was  read.  Judgment  for  plaintiff  25  shillings 
with  costs  of  suit.  Upon  which  the  defendant  makes  his  appeal 
to  the  next  court  of  equity  for  this  county. 

168G  at  a  court  of  equity  "^  Commissioners  present,  John 
held  at  Chester  ye  5th  day  Bluston,    Samuel   Lewis,   John 

of  the  1st  week  of  ye  10th  !  Simcocke,  Robert  Wade,  Geo. 
month,  1686  [       Maris,   Robert   Pile,   Bartholo- 

mew  Coppoche,    Robert    Eyre 
J       Clech. 

Francis  Yarnall  of  this  county  preferred  a  bill  to  this  court 
wherein  he  required  a  remedy  against  ye  verdickt  of  Jury  and 
Judgment  of  court  obtained  against  him  by  Joshua  Hastings  of 
ye  same  county,  at  the  last  court  of  Common  Pleas  held  for  this 
county,  at  Chester,  the  3rd  and  4th  days  of  this  present  weeke. 
Upon  which  it  was  decreed  that  Francis  Yarnall  should  pay  10 
shillings  and  bear  half  the  charges  of  that  court. "» 

Such  proceedings  gave  offense  to  the  people,  as  unduly 
interfering  with  the  verdicts  of  juries,  and  in  1687  the 
assembly  asked  for  a  conference  with  the  council  upon 
certain  questions,  among  them  "how  far  y^  County 
Quarter  Sessions  may  be  Judges  of  Equity  as  well  as 
Law  and  if  after  a  judgment  in  Law  whether  the  same 
Court  hath  power  to  Resolve  itselfe  into  a  Court  of 
Equity,  and  Either  Mitigate,  alter,  or  Re  vers  y^  said 
Judgment."^  The  council  answered  evasively  that  the 
law  made  at  New  Castle  "doth  supply  and  answer  all 
occasions  of  appeal,  and  is  a  plainer  rule  to  proceed  by."^ 

By  the  Act  of  May  10,  1(390,  it  was  provided  that  the 
county  courts  "shall  be  Courts  of  equitie  for  the  hearing 


1  Chester  County  Records,  3,  10  mo.   1686,  quoted  by  Peter 
McCall  in  his  address  before  the  Law  Academy,  21. 

2  I  Colonial  Records,  159,  12,  3  mo.  1687. 

3  I  Votes  of  the  Assembly,  41. 


EARLY  COURTS  OF  PEXXSYLVAXIA.     169 

and  determining  all  matters  and  causes  cognizable  in 
the  said  Court,  under  the  value  of  ten  pounds,"  and  that 
the  provincial  court  should  have  the  hearing  and  deter- 
mining of  all  appeals  from  the  county  courts  both  in 
law   and   equity.*     This   statute   was   substantially    re- 
enacted  in  1693  during  the  administration  of  Governor 
Fletcher  of  New  York.'     During  all  this  time  there  were 
frequent  petitions  to  the  council,  for  relief  against  judg- 
ments of  the  courts,  several  of  which  were  relegated  to 
the  county  or  provincial  courts  for  a  hearing  in  equity.^ 
The  relief  given  under  the  name  of  equity  would  seem 
to  have  been  similar  to  the  discretionary  powers  of  the 
courts  now  exercised  on  rules  to  open  judgments,  or  in 
controlling  verdicts  on  motions  for  new  trials,  and  there 
is  no  trace  of  formal  chancery  proceedings.     Neverthe- 
less the  popular  dislike  of  any  interference  with  verdicts 
is  voiced  in  a   further  complaint   of  the  assembly,   in 
1694,  stating  that  the  judges  had  too  great  liberty  to 
destroy  or  make  void  the  verdicts  of  juries  and  praying 
that  they  might  be  instructed  not  to  decree  anything  in 
equity  to  the  prejudice  of  judgments  before  given  in 
law.^     Even    more    vigorous    would    have    been    their 
remonstrance  if  there  had  been  an  attempt  to  intro- 
duce real  chancery  pleading,  but  this  was  foreign  to  the 
spirit  of  Penn's  legislation,  which  permitted  "all  persons 
to  freely  appear  in  their  own  way  and  personally  plead 
their   own    cases   themselves,    or     if   unable,    by   their 
friends."^ 

^  Charter  and  Laws  of  Pennsylvania,  184.  The  assembly 
tried  to  strike  out  the  word  equity,  I  Votes  of  the  Assembly,  57. 

"^  Charter  and  Laws  of  Pennsylvania,  214,  225.  See  also  Act 
of  November  27,  1700,  II  Statutes  at  Large,  134. 

3  I  Colonial  Records,  IGl,  18,  3  mo.  1687;  I  Colonial  Records 
441,  April  24,  1G95;  I  Colonial  Records,  442,  May  25,  1695;  I 
Colonial  Records,  478,  May  24,  1697. 

*  I  Votes  of  the  Assembly,  79. 

*  Charter  and  Laws  of  Pennsylvania,  100,  re-enacted  Novem- 
ber 27,  1700;  II  Statutes  at  Large,  128. 


170     EARLY  COURTS  OF  PENNSYLVANIA. 

The  prolonged  controversy  between  the  assembly,  the 
governors  and  the  home  government  over  the  court 
laws  that  took  place  in  the  early  years  of  the  eighteenth 
century  has  been  sufficiently  discussed  and  will  be  re- 
ferred to  here  only  in  so  far  as  it  affected  equity  juris- 
diction. The  Act  of  October  28,  1701,^  believed  to  have 
been  drafted  by  David  Lloyd,  contained  this  provision: — 

"That  the  said  justices  in  the  respective  county  courts  shall 
have  full  power,  and  are  hereby  empowered  and  authorized  to 
hear  and  decree  all  such  matters  and  causes  of  equity  as  shall 
come  before  them  in  the  said  courts,  wherein  the  proceedings 
shall  be  by  bill  and  answer,  with  such  other  pleadings  as  are 
necessary  in  chancery  courts  and  proper  in  these  parts,  with 
power  also  for  the  said  justices  to  force  obedience  to  their 
decrees  in  equity,  by  imprisonment  or  sequestration  of  lands, 
as  the  case  may  require." 

An  appeal  was  given  to  the  provincial  court,  which 
was  empowered  to  revoke,  alter  and  confirm  decrees 
according  to  equity  and  justice. 

This  act,  which  was  repealed  by  the  queen  in  council 
on  February  7,  1705,  because  the  lords  commissioners 
for  trade  conceived  that  so  far  from  expediting  the 
determination  of  lawsuits  it  would  impede  the  same,^ 
attempted  to  introduce  a  more  elaborate  procedure 
without  actually  committing  the  courts  to  the  English 
practice,  and,  like  all  half  measures,  would  have  led  to 
confusi^on  and  litigation.  One  can  imagine  the  unlearned 
judges  of  the  county  courts  deciding  how  much  chancery 
pleading  was  "proper  in  these  parts."  There  is  no 
trace  of  any  proceedings  had  under  its  authority;  in  fact 
Chief  Justice  Guest  in  1703  made  a  complaint  to  the 
council — 


*  II  Statutes  at  Large,  148.      See  Charter  and  Laws  of  Penn- 
sylvania, 300. 

^  II  Statutes  at  Large,  48L 


EARLY  COURTS  OF  PENNSYLVANIA.     171 

"That  notwithstanding  ye  Laws  of  this  Govmt  had  erected 
Courts  of  Equity  &  ye  Justices,  have  a  power  also  in  their 
Commission  for  ye  same:  Yet  that  to  ye  great  oppression  of  ye 
People,  there  have  been  no  such  courts  as  yet  held  in  pursu- 
ance of  ye  present  Law,  the  Rules  of  ye  said  Court  not  having 
yet  recevd  so  full  a  sanction  as  tis  thought  may  be  requisite."' 

It  was  ordered  that  the  rules  should  be  produced  at 
the  next  session  of  the  council,  but  nothing  further 
appears  to  have  been  done  until  September,  1704,  when 
Guest  moved  that  the  rules  agreed  on  by  the  county 
court  should  be  enforced  in  all  the  courts.-  Finally  in 
the  following  April  the  rules  prepared  by  "certain  per- 
sons skilled  in  the  law"  were  laid  before  the  council  and 
approved,^  but  not  long  afterwards  the  governor  was 
notified  of  the  repeal  of  the  act. 

The  controversy  that  followed  between  the  governor 
and  council  on  the  one  side  and  the  speaker  and  assembly 
on  the  other  was  the  first  real  crisis  in  the  history  of 
equity  in  Pennsylvania.  Lasting  as  it  did  for  three 
sessions  of  the  legislature  we  can  gather  some  informa- 
tion as  to  the  respective  plans  submitted  for  the  organi- 
zation of  the  courts,  although  the  text  of  the  bills  has 
not  come  down  to  us.  Chancery  was  the  chief  bone  of 
contention.  Governor  Evans  wished  to  act  as  chancellor 
assisted  by  the  council,  in  accordance  with  the  practice 
recently  established  in  the  crown  colonies,  and  it  would 
seem  that  the  assembly  was  at  first  inclined  to  yield 
this  point  "provided  that  the  court  meddle  not  with 
matters  wherein  sufficient  remedy  may  be  had  in  any 
other  court"  ■*  whether  by  the  rules  of  the  common  law 
or  the  laws  of  the  province.  But  the  country  members 
were  afraid  that  too  much  of  the  business  of  the  courts 

>  II  Colonial  Records,  115,  29,  11  mo.  1703-4. 
'  II  Colonial  Records,  164,  15,  7  mo.  1704. 
3  II  Colonial  Records,  189,  13,  2  mo.  1704-5. 
*  II  Colonial  Records,  2G3,  23,  7  mo.  1706. 


172  ]{ARLY  COURTS  OF  PENNSYLVANIA. 

would  be  drawn  to  Philadelphia,  and  after  some  fruit- 
less discussion  the  house  was  dismissed  and  the  matter 
postponed  until  the  meeting  of  the  new  assembly.  This 
assembly  was  even  more  completely  dominated  by 
David  Lloyd,  the  speaker,  than  its  predecessor  and  re- 
plied to  the  bill  of  the  governor,  drawn  up  by  the  "prac- 
titioners of  the  law,"  with  a  "long  and  tedious  bill"^ 
of  its  own  which  appears  to  have  been  a  modified 
form  of  David  Lloyd's  act  of  1701  that  had  been  rejected 
by  the  Crown.  The  governor  at  once  objected  to  the 
administration  of  equity  by  county  justices  who  had 
previously  decided  the  same  question  at  law,  to  which 
the  assembly  replied  that  the  council  should  devote 
their  attention  to  public  affairs  and  leave  private  causes 
to  the  justices — 

"That  the  Court  of  Equity  as  proposed  by  the  Bill,  gives  no 
Colour  of  authority  for  the  same  persons  to  Judge  twice  of  the 
same  cause,  for  that  matters  of  Equity  being  originally  begun 
there,  and  a  Clause  particularly  obliging  them  not  to  intenneddle 
with  matters  of  Law  in  the  said  Courts  of  Equity,  and  our  Bill 
being  warranted  in  that  point  by  an  act  of  Parlian^^^  which  gives 
the  Judges  of  the  Common  Law  Power  to  determine  matters 
of  Equity  in  the  same  Sessions  throughout  the  Dominion  of 
Wales,  We  find  no  cause  to  Recede  from  what  we  have  already 
proposed."^ 

To  this  the  council  quickly  replied  that  it  was  wiser 
to  follow  the  practice  of  the  "others  of  the  Queen's 
colonies"  than  to  draw  from  the  court  of  the  "Marches 
of  Wales,  which  for  its  inconveniency,  'tis  said  has  been 
abrogated  by  act  of  Parliament."^ 

This  aroused  the  ire  of  the  Welsh  Speaker  and  back 
came  the  hot  reply  that  whoever  had  advised  that  any 

'  II  Colonial  Records,  266,  25,  7  mo.  1706. 
'  II  Colonial  Records,  280,  27,  9  mo.  1706. 
3  II  Colonial  Records,  282,  November  28,  1706. 


EARLY  COURTS  OF  PENNSYLVANIA.     173 

part  of  the  law  which  estabhshed  courts  in  Wales  was 
abrogated  gave  pernicious  counsel  to  the  governor. 
Only  that  portion  of  the  ordinance  of  Wales  which  gave 
the  president  and  council  chancery  powers  had  been 
suppressed,  but  the  settlement  of  chancery  in  the  respec- 
tive counties  of  Wales,  the  foundation  of  the  assembly's 
bill  had  "had  constant  allowance  since  the  time  of  King 
Henry  ye  8th." ^ 

The  governor  rejoined  that  "if  there  were  any  mistake 
in  a  matter  that  is  so  foreign  to  us  as  the  Courts  of 
Wales,  it  might  have  been  hinted  to  the  Gov""  in  another 
language  than  calling  it  pernicious  council,"  and  again 
urged  that  the  court  of  chancery  be  settled  as  in  other 
parts  of  the  queen's  dominions.-  The  assembly  remained 
firm  and  were  in  a  fairway  to  win  this  point, but  the  dis- 
cussion of  other  features  of  the  bill  became  so  acrimonious 
that  finally  the  house  adjourned  without  passing  any 
court  law  and  the  governor  established  the  courts  by  an 
ordinance  which,  incidentally,  conferred  equity  powers 
upon  the  county  courts  of  common  pleas  and  the  supreme 
provincial  court. ^  The  assembly  vigorously  protested 
that  the  ordinance  was  illegal  but  no  compromise  could 
be  effected  and  the  courts  continued  to  sit  by  authority 
of  the  ordinance  during  the  remainder  of  Evans's  admin- 
istration. 

So  far  as  equity  was  concerned,  the  anti-proprietary 
party  had  achieved  a  distinct  success  and  it  is  not  a 
little  curious  that  this  was,  at  least  in  part,  due  to  the 
fact  that  their  leader,  a  Welsh  lawyer,  could  cite  the 
courts  of  his  native  principality  as  a  precedent  for  what 
he  offered  for  adoption  in  Pennsylvania.     Although  the 

»  II  Colonial  Records,  288,  2,  10  mo.  1706. 

2  II  Colonial  Records,  295,  23,  10  mo.  1706. 

3  Charter  and  Laws  of  Pennsylvania,  319.  The  remonstrance 
of  the  Assembly  will  be  found  in  II  Colonial  Records,  362, 
March  4,  170G-7. 


174     EARLY  COURTS  OF  PENNSYLVANIA. 

subject  is  inadequately  treated  by  text  writers  it  would 
seem  that  David  Lloyd's  assertions  were  correct;  that 
the  court  of  the  lord  president  and  the  council  in  the 
principality  of  Wales  and  the  Marches  had  jurisdiction 
in  cases  of  equity  by  force  of  the  king's  commission  and 
instructions;^  that  this  court  was  abohshed  in  1()S9,- 
and  that  equity  jurisdiction  was  exercised  thereafter  by 
the  court  of  great  sessions,  the  principal  law  court  of 
Wales,  which  was  not  visited  by  the  English  judges  of 
assize.*  The  procedure  on  the  equity  side  of  this  court 
was  by  bill,  answer  and  demurrer  in  accordance  with 
ordinary  chancery  practice,  although  somewhat  more 
dilatory  than  in  the  high  court  of  chancery,  owing  to 
the  long  intervals  between  circuit  and  circuit.^  The 
jurisdiction  of  this  court  was,  how^ever,  not  exclusive 
either  at  law  or  in  equity.^ 

It  is  unfortunate  that  the  early  records  of  our  courts 
have  not  been  preserved  in  such  a  condition  as  to 
afford  much  information  regarding  the  extent  that  equity 
was  administered  under  this  system,  if  at  all.  In  1710 
an  "act  for  establishing  courts  of  judicature"  was  passed. 


»  IV  Coke's  Institutes,  242;  Pembrokeshire  by  Owen  of 
Heullys  (1603),  Folio  74a,  edition  of  1892,  page  155;  History  of 
Radnorshire  by  Rev.  Jonathan  Williams,  72;  Archasologia  Cam- 
brensis,  Vol.  Ill  (series  3),  29;  Bacon's  Law  Tracts,  Jurisdiction 
of  the  Marches. 

-  1  William  and  Mary,  chapter  27. 

^  The  court  of  great  sessions  was  abohshed  by  the  act  of  I  Wil- 
liam IV,  chapter  70;  Stephen's  Commentaries  on  the  Law  of 
England  (1st  edition).  Introduction,  §  4. 

^  Abbot's  Jurisdiction  and  Practice  of  the  Court  of  Great 
Sessions  of  Wales  (1795),  94  and  introduction,  xxviii. 

*Viner's    Abridgment,   title,    Wales,   D.,   Morgan   v.   ,   I 

Atkins'  Reports,  408  (1737);  Griffith  v.  Joanes,  Choyce  Cases  in 
Chancery,  129  (1578);  Prohibitions  might  issue  from  the  King's 
Bench  directed  to  the  Court  of  Great  Sessions,  Vaughn  v.  Evans, 
8  Modern  Reports,  374  (1725),  Trantor  v.  Duggan,  12  Modern 
Reports.  138  (1698). 


EARLY  COURTS  OF  PENNSYLVANIA.     175 

which  conferred  appellate  equity  jurisdiction  on  the 
supreme  court,  and  original  equity  jurisdiction  on  the 
county  courts  of  common  pleas  with  a  proviso  that — 

"When  matters  of  fact  shall  happen  to  arise  upon  their 
examination,  or  hearing  of  the  matters  and  causes  to  be  heard 
and  determined  in  the  said  court,  then  and  in  every  such  case, 
they  shall  order  the  matter  of  fact  to  issue  and  trial  at  the 
court  of  common  pleas,  for  the  proper  county,  where  the  fact 
ariseth,  before  they  proceed  to  sentence  or  decree  in  the  said' 
court  of  equity."  * 

This  clause  was  largely  responsible  for  the  repeal  of 
the  act  by  the  queen  in  council.  Lord  Raymond,  the 
solicitor  general,  having  given  an  opinion  that  it  would 
"make  proceedings  in  equity  insufferably  dilatory  and 
multiply  trials  at  law  in  the  plain  cases  to  no  manner 
of  purpose. "2  Upon  notification  of  the  repeal  Governor 
Gookin  revived  the  courts  by  an  ordinance  drafted  by 
Robert  Assheton  which  contained  the  substance  of  the 
repealed  act  in  a  more  concise  form.^  When  the 
assembly  took  into  consideration  the  reenactment  of 
the  court  laws  it  was  decided  that  separate  laws  should 
be  passed  for  each  of  the  courts  and  further  resolved 
"that  all  matters  of  Equity,  shall  begin  originally  in 
the  Provincial  Court  with  Power  to  grant  Injunctions 
and  to  have  general  jurisdiction  over  the  Province."* 
What  brought  about  this  change  of  opinion  on  the  part 
of  David  Lloyd,  who  was  again  speaker  and  principal 
draftsman  of    the  acts   passed  in  accordance  with  the 


'  February  28,  1710-11,  II  Statutes  at  Large,  301;  Charter  and 
Laws  of  Pennsylvania,  323. 

*  II  Statutes  at  Large,  549,  1  Pennsylvania  Archives  (1st 
Series),  157. 

*  II  Statutes  at  Large,  55G;  Charter  and  Laws  of  Pennsylvania, 
351 ;  The  Assembly,  as  usual,  protested  against  this  ordinance, 
II  Colonial  Records,  599,  August  4,  1714. 

*  II  Votes  of  the  Assembly,  IGl,  20,  11  mo.  1714-15. 


176     EARLY  COURTS  OF  PENNSYLVANIA. 

resolution  on  May  2S,  1715/  must  be  left  to  conjecture. 
Experience  had  perhaps  taught  him  by  this  time  that 
the  county  courts  were  incapable  of  administering  formal 
equity.  At  any  rate  the  county  courts  of  common  pleas 
ceased  to  exercise  chancery  powers  and  the  perpetuation 
of  the  Welsh  system  was  left  to  depend  on  the  supreme 
provincial  court,  which  received  the  following  chancery 
powers : — 

"Section  III.  And  be  it  further  enacted  by  the  authority- 
aforesaid,  That  the  said  judges  of  the  supreme  court  are  hereby 
also  authorized  and  enabled  to  hold  plea  in  equity,  by  bill, 
appeal,  petition  or  suit,  to  be  brought  or  exhibited  in  the  said 
court  by,  for  or  against  any  person  or  persons  whatsoever,  for 
any  discovery,  or  other  matters  relievable  in  equity;  and  there- 
upon to  issue  out  process  of  subpoena  or  distringas,  and  all  other 
usual  process  for  compelling  the  parties  defendants  in  such  suits 
to  appear,  put  in  their  answers  and  make  their  defenses  to  such 
bills,  appeals,  petitions  (or)  suits;  and  for  the  parties  to  proceed 
therein  and  thereupon  according  to  such  rules  or  orders,  and  in 
such  manner  and  form  as  the  courts  of  chancery  and  exchequer 
in  Great  Britain  have  used  to  proceed  by. 

"And  upon  issues  joined  in  any  of  the  said  causes  or  suits  in 
equity,  the  said  court  is  to  cause  witnesses  to  be  examined  if 
desired,  on  either  side,  by  commissions  to  be  awarded  for  that 
purpose,  or  by  sworn  or  attested  examiners;  and  after  the  publi- 
cation of  the  depositions  of  the  witnesses,  to  proceed  to  the 
hearing  of  the  said  causes,  and  upon  proofs  and  evidences  therein 
or  thereupon,  or  upon  bill  and  answer,  where  no  witnesses  shall 
be  examined,  or  proofs  made,  to  make  such  orders  and  decrees 
either  for  the  r(elief  of)  the  plaintiffs  or  for  the  directing  any 
issue  or  issues  at  law  to  be  (tried)  for  the  information  of  the 
court,  or  for  the  dismissing  of  the  said  plaintiff's  bills  or  other- 
wise, as  the  said  court  shall  see  just  and  reasonable,  and  as  is 
or  hath  been  used  in  the  said  courts  of  chancery  or  exchequer  in 
Great  Britain. 

"And  the  said  court  shall  award  such  process  for  the  enforcing 
the  parties,  in  the  said  suits,  to  yield  obedience  to  such  orders 
or  decrees  as  shall  be  made  in  the  said  causes,  and  in  case  of 
non-performance    thereof,    or    disobedience    thereto,    the    said 

*  III  Statutes  at  Large,  65. 


EARLY  COURTS  OF  PENNSYLVANIA.     177 

court  shall  award  all  such  process  of  contempt  against  the  per- 
sons and  estates  of  him  or  them  that  shall  be  in  contempt  or 
refuse  obedience  to  any  of  the  said  orders  or  decrees,  and  make 
and  execute  like  process,  orders  and  proceedings  thereupon,  as 
are  and  hath  been  used  in  like  cases  in  or  by  the  said  courts  of 
chancery  or  exchequer  in  Great  Britain;  and  that  the  prothono- 
tar>'  of  the  supreme  court  shall  be  register  of  the  said  court  of 
equity." 

Unfortunately,  the  Act  of  1715  received  scant  con- 
sideration from  the  lords  commissioners  of  trade  and 
was  repealed  by  the  king  in  council  on  July  21,  1719.^ 

The  notification  of  the  repeal  of  this  law  was  received 
at  a  time  when  good  feeling  prevailed  in  the  province. 
David  Lloyd  had  been  appointed  chief  justice  and  had 
ceased  to  be  a  disturbing  factor,  Andrew  Hamilton,  the 
bar  leader  of  his  time,  was  attorney  general,  while  Sir 
William  Keith,  the  governor,  was  at  the  height  of  his 
popularity.  On  May  3,  1720,  the  governor  addressed  a 
message  to  the  assembly  in  which  he  stated  that,  having 
consulted  gentlemen  "learned  in  the  law,  he  was  satisfied 
"that  no  representative  body,  in  any  of  his  Majesty's 
colonies,  is  invested  with  the  power  to  erect  such  a 
court,  or  that  the  ofiQce  of  chancellor  can  be  lawfully 
executed  by  any  person  whatsoever,  except  him,  who, 
by  virtue  of  the  great  seal  of  England,  may  be  under- 
stood to  act  as  the  King's  representative  in  the  place." 
On  the  following  day  the  message  was  considered  by  the 
assembly  and  it  was  resolved,  "that,  considering  the 
present  circumstances  of  this  Province,  this  House  is  of 
opinion,  that,  for  the  present,  the  Governor  be  desired 
to  open  and  hold  a  court  of  equity  tor  this  Province, 
with  the  assistance  of  such  of  his  council  as  he  shall 
think  fit,  except  such  as  have  heard  the  same  cause  in 
any  inferior  court. "^ 

'  III  Statutes  at  Large,  439,  464. 

*  Charter  and   Laws  of  Pennsylvania,  305;   II  Votes  of  the 
Assembly,  271;  III  Colonial  Records,  84,  June  8,  1720. 


17S  EARLY  COURTS  OF  PExNNSYLVANIA. 

At  a  meeting  of  the  council  on  August  G,  1720,  the 
governor  brought  the  matter  to  the  attention  of  the 
members  who  resolved: — 

"That  it  is  the  Opinion  of  this  Board,  that  by  virtue  of  the 
Powers  granted  by  the  Royal  Charter  to  the  late  Proprietor, 
his  Heirs  and  Assigns,  and  to  his  and  their  Lieutents.  or  Depu- 
ties, being  regularly  appointed,  the  present  Governour  WiUiam 
Keith,  Esqr.,  safely  may  comply  with  the  Desire  of  the  Repre- 
sentatives of  the  ffreemen  of  this  Province,  signified  to  him  by  an 
unanimous  Resolution  of  their  House,  dated  at  Philadelphia 
the  4th  day  of  May  last,  And  that  the  holding  of  such  a  Court 
of  Chancery  in  the  manner  aforesaid,  may  be  of  great  Service 
to  the  Inhabitants  of  this  Colony,  and  appears  agreeable  to  the 
practice  which  has  been  approved  of  in  the  neighbouring  Govern- 
ments. 

"But  the  Governour  speaking  to  his  own  want  of  Experience 
in  Judicial  Affairs,  and  representing  to  the  Board  the  great 
Addition  of  Attendance  and  Fatigue  in  the  public  Business 
which  v/ould  be  thereby  laid  upon  him.  He  was  pleased  to  add 
nevertheless,  that  considering  the  many  marks  the  House  of 
Representatives  and  this  Board  had  shewn  of  their  Confidence 
in  him  in  this  as  well  as  divers  other  respects,  He  should  not 
decline  to  serve  the  Publick  in  that  Station,  but  insisted  on  this, 
that  as  no  Court  of  Chancery  could  by  the  method  proposed  be 
held  without  him.  So  that  He,  on  the  other  hand,  should  not 
fail  of  having  a  due  assistance  from  the  Council  on  their  parts; 
And  it  was  thereupon,  at  the  Governours  desire,  established  and 
declared. 

"That  as  often  as  the  Governour  is  to  sit  in  Chancery  and  hold 
a  Court,  All  the  members  of  Council  in  or  near  Philadelphia, 
shall  be  summoned  to  attend  the  Governour  as  his  assistants 
upon  that  Bench,  and  that  there  shall  not  any  Decree  be  pro- 
nounced or  made  in  Chancery  but  by  the  Governour  as  Chan- 
cellor, with  the  assent  and  concurrence  of  any  two  or  more  of  the 
Six  eldest  of  the  Council  for  the  time  being,  And  that  those  Six 
eldest  Counsellors  or  assistants,  or  any  of  them,  may  be  em- 
ployed by  the  Governour  as  Masters  in  Chancery,  as  often  as 
Occasion  shall  require. 

"And  that  the  Inhabitants  may  have  due  notice  of  the  said 
Court,  it  is  ordered  that  A  Proclamation  be  issued  certifying 
all  his  Majestys  Liege  People  of  this  Province,  that  for  the 
more  equal  Distribution  of  Justice  and  the  Conveniency  of  the 


EARLY  COURTS  OF  PEXXSYLVAXIA.     179 

Subject,  a  Court  of  Equity  or  Chancery  will  be  opened  by  the 
Governour,  at  the  Court  House  in  Philadelphia,  upon  the  25th 
day  of  this  instant,  August,  in  order  to  hear  and  judge  of  all 
such  matters  within  this  province,  as  are  regularly  cognizable 
before  any  Court  of  Chancery,  according  to  the  Laws  and  Con- 
stitutions of  that  part  of  Great  Britain  called  England,  and 
that  the  said  Court  will  be  always  open  for  the  Relief  of  the 
Subject;  Whereof  his  Majestys  Judges  of  the  Supreme  Court, 
and  the  Justices  of  the  inferiour  Courts,  and  all  others  whom  it 
may  concern  are  to  take  Notice,  and  to  govern  themselves 
accordingly."^ 

Four  days  later  the  following  proclamation  was  made : — 

"COURT  OF  CHANCERY. 

"By  William  Keith  Esqr.  Govern^  Of  the  Province  of  Pen- 
sivania  &  Counties  of  New  Castle,  Kent  &  Sussex,  upon  Dela- 
ware.    A.  Proclamation. 

"Whereas  Complaint  has  been  made,  That  Courts  of  Chancery 
or  Equity  are  absolutely  necessary  in  the  Administration  of 
Justice,  for  mitigating  in  many  cases  the  Rigour  of  ye  Laws, 
whose  Judgments  are  tied  down  to  faxed  and  unalterable  Rules, 
and  for  Opening  away  to  the  Right  and  Equity  Of  a  Cause  for 
which  the  Law  cannot  in  all  cases  make  a  Sufficient  Provision. 
Have  notwithstanding  been  but  toe  seldom  regularly  held  in  this 
Province,  in  such  a  manner  as  ye  aggrieved  Subject  might  obtain 
the  Reliefe  which  by  such  Courts  ought  to  be  Granted.  And 
Where  as,  the  Representatives  of  ye  Freemen  of  this  Province 
taking  ye  same  into  Consideration,  did  at  their  last  meeting 
in  Assembly  request  me  that  I  would  with  ye  assistance  of  ye 
Council,  Open  and  hold  such  a  Court  of  Equity  for  this  Province, 
To  ye  end  therefore  that  his  Majesties  good  Subjects  may  no 
longer  Labour  under  these  inconveniences  which  are  now  Com- 
plained Of,  I  have  thought  fitt,  by  and  with  the  advice  of  the 
Council,  hereby  to  Pubhsh  and  Declare,  That  with  their  assist- 
ance I  Purpose  (God  willing)  to  open  and  hold  a  Court  of  Chan- 
cery or  Equity,  for  this  Province  of  Pensilvania,  at  ye  Court 
House  of  Philadelphia,  on  Thursday  the  Twenty  fifth  day  of 
this  instant  August,  From  which  Date  the  Said  Court  will  be 
and  remain  Always  Open  for  the  ReHefe  of  ye  Subject,  to  hear 
and   Determine  all  such  matters  arrising  within  the  Province 


>  in  Colonial  Records,  100,  August  6,  1720. 


ISO  EARLY  COURTS  OF  PENNSYLVANIA. 

aforesd,  as  are  regularly  Cognizable  before  any  Court  of  Chan- 
cery, According  to  ye  Laws  and  Constitution  of  that  part  of 
Great  Britain  called  England.  And  his  Majesties  Judges  of  his 
Supream  Court,  as  well  as  ye  Justices  of  the  Inferior  Courts, 
and  all  others  whom  it  may  Concern,  are  required  to  take  Notice 
hereof,  and  to  govern  themselves  Accordingly.  Given  at  Phila- 
delphia, ye  tenth  day  of  August,  in  the  Seventh  year  of  the 
Reign  of  our  vSovereign  Lord  George  King  of  Great  Britain, 
France  &  Ireland,  Defender  of  the  Faith  &'C.  Annoq.  Domini 
1720. 

"God  Save  the  King. 

"W.  Keith."! 

A  few  days  later  the  assembly  took  into  consideration 
the  governor's  proclamation  and  on  the  twenty-eighth 
of  August  extended  to  him  their  thanks  for  his  message 
and  requested  that  he  should  choose  as  his  assistants 
those  who  had  not  heard  the  cases  before  in  the  inferior 
courts,  to  which  the  governor  readily  assented  and  in 
this  auspicious  manner  was  established  the  first  and 
only  separate  court  of  chancery  in  Pennsylvania.  When 
the  common  law  courts  were  once  more  established  by 
the  Act  of  May  22,  1722,-  no  equity  jurisdiction  was 
conferred  upon  either  the  supreme  or  county  courts. 

On  the  twenty-fifth  of  August,  1720,  Sir  William  Keith 
qualified  as  chancellor  and  appointed  Charles  Brockden 
registrar.  James  Logan  and  five  other  members  of  the 
council  were  named  as  masters  and  from  time  to  time 
thereafter  other  appointments  both  of  masters  and  ex- 
aminers were  made.  The  proceedings  of  the  court, 
long  buried  in  oblivion,  are  not  referred  to  in  the 
reported  cases,  and  the  only  allusion  to  them  by  an  early 
historian  is  a  statement  by  Proud  that  John  Kinsey, 
afterwards  chief  justice,  was  compelled  by  Sir  William 
to  take  off  his  hat  when  addressing  the  court,  an  act 

'Charter  and  Laws  of  Pennsylvania,  386,  II  Votes  of  the 
Assembly,  274. 

2  II  Statutes  at  Large,  298. 


EARLY  COURTS  OF  PENNSYLVANIA.  181 

which  brought  upon  the  governor  a  remonstrance  by 
the  quarterly  meeting  of  Friends.^  Thanks  to  the 
perseverance  of  WilHam  Henry  Rawle,  Esq.,  a  portion 
of  the  records  of  the  court  were  found  in  a  foHo  volume 
that  had  lain  neglected  for  many  years  among  the  unpub- 
lished archives  of  the  state  department  and  which  proved 
to  be  the  registrar's  book.  A  critical  examination  of 
the  cases  contained  in  the  register  will  be  found  in  Mr. 
Rawle's  admirable  address  on  Equity  in  Pennsylvania, 
delivered  before  the  Law  Academy  of  Philadelphia  in 
186S."  Among  the  cases  in  which  the  court  of  chan- 
cery exercised  jurisdiction  were  bills  for  account  and 
for  partition;  to  subject  land  to  the  payment  of  debts 
and  legacies;  to  stay  waste;  to  restrain  proceedings  at 
law;  to  take  the  testimony  of  witnesses  in  foreign  parts; 
to  settle  differences  between  partners;  petitions  for  writs 
de  lunatico  inquirendo ,  and  for  writs  ne  exeat  provincia.^ 
The  frequent  use  of  the  last  named  writ  is  interesting. 
Confined  in  its  original  application  to  cases  involving 
the  safety  of  the  realm,  its  use  had,  in  time,  extended 
to  private  causes  as  a  means  of  procuring  equitable 
bail.  The  departure  of  a  litigant  out  of  the  jurisdiction 
of  the  court  without  security  for  his  appearance  was  a 
serious  matter  indeed  in  days  when  communication 
between  Europe  and  America  was  slow  and  difficult. 

The  case  of  Cole  v.  Wathell*  is  curious,  as  an  applica- 
tion to  chancery  in  an  admiralty  cause.  The  com- 
plainants, part  owners  of  a  ship,  filed  a  petition  setting 
forth  that  the  defendant,  also  a  part  owner,  had  refused 
to  join  with  them  in  fitting  out  and  loading  the  vessel 
for  a  proposed  voyage,  that  she  was  about  to  sail  for  the 

'  Proud's  History  of  Pennsylvania,  Vol.  H,  200. 
^  The  lecture  was  published  by  the  Law  Academy  of  Phila- 
delphia in  1868  with  the  register  as  an  appendix. 
^  Rawle's  Equity  in  Pennsylvania,  26. 
••Rawle's  Equity  in  Pennsylvania,  38,  appendix  23  (1728). 


182     EARLY  COURTS  OF  PENNSYLVANIA. 

Barbadoes  and  there  being  no  person  in  this  govern- 
ment acting  as  judge  of  vice-admiralty,  they  were  obUged 
to  apply  to  the  governor,  as  chancellor,  for  equitable 
relief  and  praying  that,  "according  to  the  custom  and 
usage  in  such  cases,"  the  chancellor  would  appoint 
appraisers,  to  value  the  defendant's  interest,  they  being 
willing  to  account  to  him  for  the  appraised  value.  The 
defendant  was  given  time  to  dispose  of  his  interest  or 
join  in  fitting  out  the  ship,  but  he  left  town  without 
leaving  any  notice  of  what  he  had  done  or  intended  to 
do,  whereupon  an  order  was  made  appointing  three 
appraisers,  who  filed  a  return  valuing  the  defendant's 
interest  at  "two  hundred  and  forty  pounds  current 
money  of  Pennsylvania."  In  Blad  v.  Bamfield,^  Lord 
Nottingham  said:  "I  took  this  occasion  to  show  that 
the  court  of  chancery  hath  always  had  an  admiral 
jurisdiction,  not  only  per  viam  appellationis,  but  per  viam 
evocationis  too,  and  may  send  for  any  cause  out  of  the 
admiralty  to  determine  it  here."  On  several  other  occa- 
sions the  lord  chancellor  asserted  and  enforced  this  con- 
current jurisdiction,  which  extended  at  least  to  cases  of 
depredations  on  the  sea,  and  has  long  been  deemed 
obsolete,  so  that  it  is  quite  possible,  although  by  no 
means  certain,  that  a  knowledge  of  these  seventeenth 
century  precedents  may  have  induced  the  complainants 
in  Cole  v.  Wathell  to  seek  relief  in  chancery. 

From  the  minutes  in  the  register  it  would  appear  that 
the  cases  did  not  proceed  with  much  rapidity,  in  fact 
many  of  them  were  before  the  court  for  several  years, 
delayed  by  all  sorts  of  dilatory  motions.  In  a  partition 
case^  one  of  the  defendants  was  particularly  obstinate. 

1  3  Swanston's  Reports,  604  (1674);  Blad's  Case,  3  Swanston'.s 
Reports,  603  (1673);  Denew  v.  Stock,  3  Swanston's  Reports,  662 
(1677);  Rex  v.  Carew,  3  Swanston's  Reports,  699  (1682); 
Spence's  Equity,  Vol.  L  703. 

2  Ellis  V.  Ellis,  Rawle's  Equity  in  Pennsylvania,  appendix, 
34. 


EARLY  COURTS  OF  PEXXSYLVAXIA.  183 

Having  refused  to  appear  in  response  to  a  subpoena  and 
alias  subpoena,  he  was  attached  and  remained  in  jail 
from  June,  1733,  to  November,  1734,  when  counsel  for 
complainants  moved  that  the  bill  be  taken  pro  confesso 
against  him.  He  was  then  set  at  liberty  and  ordered 
to  prepare  an  answer  within  a  month,  which  he  declined 
to  do,  whereupon  the  court  proceeded  to  a  hearing  and 
entered  a  decree  for  partition  and  mutual  conveyances. 
This  he  declined  to  obey  and  in  the  archives  \\\\\  be 
found  the  proof  of  service  of  notice  on  him,  with  his 
answer  that  "he  had  been  informed  that  there  was  a 
decree  against  him  but  that  he  did  not  care."^  A  writ 
of  partition  then  issued,  the  nature  of  which  is  not 
explained. 

The  counsel  practicing  most  frequently  in  the  court 
were  Andrew  Hamilton,  Joseph  Growdon,  John  Kinsey 
and  Peter  Evans.  Of  the  cases  recorded  only  two  were 
decided  by  Sir  William  Keith,  who  was  removed  by  the 
proprietors  from  the  office  of  governor  in  1726  after  a 
quarrel  with  Logan.  His  successor,  Patrick  Gordon, 
upon  being  applied  to  by  the  parties  to  proceed  with 
several  cases  before  the  court,  hesitated  to  act  until  he 
had  consulted  with  the  council  as  to  his  authority.  The 
matter  was  debated  and  the  governor  assured  that  he 
might  legally  assume  the  duties  of  the  office,  whereupon 
he  took  the  oath  as  chancellor."  It  was  further  pro- 
posed that  rules  should  be  drawn  up  for  the  better 
regulation  of  the  court  and  the  speedier  dispatch  of 
business,  and  David  Lloyd,  the  chief  justice,  and  Andrew 
Hamilton  were  named  for  that  purpose. 

So  far  as  can  be  discovered  the  practice  in  the  court 
follow^ed  that  of  England.  Suit  was  commenced  by 
bill ;  a  subpoena  ad  respondendum  then  issued ;  an  answer 

'  I  Pennsylvania  Archives  (1st  Series),  442. 

2  III  Colonial  Records,  281,  February  2,  1726-7. 


184     EARLY  COURTS  OF  PENNSYLVANIA. 

or  demurrer  was  filed  by  the  respondents;  testimony  was 
taken  before  examiners,  or  the  matter  referred  to  one 
of  the  masters;  injunctions  were  issued  and  decrees 
enforced  by  attachment.  On  the  whole,  considering 
the  number  of  years  the  court  was  in  existence,  the 
amount  of  business  brought  before  it  was  small.  Un- 
doubtedly the  tedious  and  technical  character  of  the  pro- 
ceedings, their  expense  and  the  fact  that  the  sittings  of 
the  court  were  dependent  upon  the  convenience  of  the 
governor,  tended  to  discourage  litigants  from  seeking 
legal  redress  through  such  a  channel. 

In  173G  the  silent  dislike  with  which  the  court  was 
regarded  changed  into  open  hostility.  Perhaps  the  con- 
tagion, if  it  maybe  so  described,  spread  from  New  York, 
where,  in  1735,  the  general  assembly  had  resolved  that 
the  court  of  chancery  held  by  the  governor  without  their 
consent  was  "contrary  to  law,  unwarrantable,  and  of 
dangerous  consequence  to  the  liberties  and  properties  of 
the  people."^  Petitions  were  presented,  signed  by  in- 
habitants of  Philadelphia,  Bucks  and  Chester  counties, 
complaining  to  the  assembly  that  the  holding  of  a  court 
of  chancery  before  the  governor  and  council  was  contrary 
to  a  clause  in  Penn's  charter  of  privileges  which  pro- 
vided— 

"That  no  person  or  persons  shall  or  may,  at  any  time  here- 
after, be  obliged  to  answer  any  Complaint,  matter  or  thing 
Whatsoever  Relating  to  Property  before  the  Govemr  and  Coun- 
cil, or  in  any  other  place  but  in  the  ordinary  Courts  of  Justice, 
unless  appeals  thereunto  shall  be  hereafter  by  Law  appointed."* 

Even  before  the  meeting  of  the  assembly  the  subject 
had  been  taken  up  by  the  press  and  a  spirited  contro- 
versy had  been  carried  on  by  contributors  to  the  Mercury 

'  Smith's  History  of  New  York,  Vol.  H,  24. 
2  II  Colonial  Records,  56,  28,  8  mo.  1701. 


EARLY  COURTS  OF  PENNSYLVANIA.     l85 

and  the  Gazetted  The  assembly  sent  a  message  to  the 
governor  requesting  information  as  to  how  the  court  of 
chancery  was  constituted,^  and  on  March  27,  1786, 
resolved,  "That  the  court  of  chancery  as  it  is  at  present 
established  is  contrary  to  the  charter  of  privileges  granted 
to  the  freemen  of  this  province."^  It  was  then  resolved 
that  the  justices  of  the  county  courts  be  given  power 
to  determine  all  suits  in  equity  under  one  hundred 
pounds,  that  a  supreme  court  of  equity  should  also  be 
established,  to  which  appeals  might  be  taken  from  the 
inferior  courts  and  which  should  also  have  original  juris- 
diction in  all  matters  of  equity  "prima  instantia"  when 
the  value  of  the  claim  exceeded  one  hundred  pounds. 
The  judges  of  this  court  were  to  consist  of  three  per- 
sons, to  be  commissioned  by  the  governor  out  of  any 
six  that  should  be  nominated  by  the  house.  A  bill  was 
framed  to  this  effect.'* 

The  charge  that  he  was  violating  the  charter  angered 
Governor  Gordon  and  it  was  ordered  that  a  vindication 
of  the  proceedings  of  the  governor  and  council  be  pre- 
pared and  published.  Accordingly  a  voluminous  report 
was  drawn  up  by  James  Logan,  giving  a  history  of  the 
establishment  of  the  court,  which,  he  said,  was  erected 
at  the  request  of  the  assembly  upon  the  best  legal  advice 
that  could  be  procured,  "particularly  that  of  our  then 
Attorney   General,    Andrew    Hamilton,   Esq.,   who   was 

'  See  particularly  the  Pennsylvania  Mercury,  December  18, 
1735,  and  the  Pennsylvania  Gazette,  December  24,  1735. 
Thomas  Penn  wrote  to  John  Penn  on  January  14,  1735:  "The 
late  newspapers  have  been  filled  with  argument?  for  and  against 
the  legality  of  the  Court  of  Chancery  and  some  people  whisper 
that  we  intend  to  make  use  of  that  court  to  recover  our  arrears." 
VII  Penn.sylvania  Archives  (2d  Series),  166. 

2  III  Colonial  Records,  670,  January  23,  1735-6. 

3  III  Votes  of  the  Assembly,  253. 

•  III  Votes  of  the  Assembly,  258-261. 


ISO  EARLY  COURTS  OF  PENNSYLVANIA. 

esteemed  and  allowed  to  be  as  able  in  that  Profession 
as  any  on  the  Continent  of  America," — a  fling  at  Hamil- 
ton, who  as  speaker  of  the  assembly  was  now  leading  the 
opposition  to  the  court.  The  report  went  on  to  argue 
that  the  word  "property"  as  used  in  the  charter  had 
reference  to  the  proprietary  grants  and  that  a  court  of 
chancery  was  an  "ordinary  court  of  justice."  It  con- 
cluded— 

"The  Assembly  however  may  be  assured,  that  none  of  the 
Council  are  fond,  or  in  the  least  desirous,  of  the  Employment, 
and  if  the  Governor  shews  any  Inclination  the  Court  should  be 
continued  on  the  same  Foot,  we  are  perswaded  it  can  be  from 
no  other  Inducement  than  his  Desire  to  preserve  Decency  and 
Order,  and  some  Resemblance  between  this  Government  and  all 
the  other  British  Ones  in  America."* 

The  assembly  replied  that  they  intended  no  offense 
to  the  governor  or  his  council  and  were  surprised  at  their 
resentment;  that  a  vote  of  the  house  was  not  sufficient 
to  raise  a  court  nor  was  the  opinion  of  one  or  more 
lawyers,  who  were  left  to  answer  for  themselves,  or  the 
silence  of  subsequent  assemblies  of  any  consideration  in 
the  case;  that  they  were  sorry  to  see  gentlemen  of  such 
penetration  as  the  members  of  the  council  resigning 
away  the  common  sense  of  the  charter;  that  great  men 
and  even  courts  were  often  mistaken  as  to  their  own 
jurisdiction ;  that  it  had  been  decided  in  England  that  a 
court  of  equity  could  not  be  established  except  by  act 
of  parliament,  and  if  the  king  could  not  raise  such  a 
court  how  could  the  deputy  of  the  king's  patentee  do  so? 
They  further  hoped  to  be  pardoned  for  saying  that,  in 
their  opinion  it  would  have  been  more  reasonable  if 
notice  had  been  taken  of  their  resolution  in  time  to  save 
them  the  trouble  of  preparing  the  bill  relating  to  courts 
of  equity,  which  had  long  lain  before  the  governor  un- 


>  IV  Colonial  Records,  27,  February  16,  1735-6. 


EARLY  COURTS  OF  PENNSYLVANIA.     187 

approved   although    the   session    of   the    assembly   was 
drawing  to  a  close. ^ 

Here  the  controversy  was  dropped,  the  assembly  soon 
after  adjourned  and  the  governor  continued  to  act  as 
chancellor  until  his  death  in  the  following  summer. 
The  matter  seems  to  have  disturbed  the  proprietary 
party,  for  a  case  was  stated  presenting  all  the  facts  and 
the  opinions  taken  of  the  vSolicitor  General,  Sir  Dudley 
Ryder,  and  the  Attorney  General,  Sir  John  Willes,  upon 
the  legality  of  the  court.  They  held,  in  effect,  that  the 
king  had  power,  in  erecting  a  new  form  of  government 
in  Pennsylvania,  to  authorize  Penn  to  erect  courts  of 
equity  and  that  the  consent  of  the  legislature  was  not 
necessary  until  Penn  had  made  it  so  by  the  charter  of 
1701;  that  the  unanimous  resolution  of  1720  was  a  suffi- 
cient declaration  of  the  assent  of  the  legislature  to  the 
erection  of  the  court,  and  that  the  court  could  be  law- 
fully held  until  the  whole  legislature  passed  an  act  to 
the  contrary.^  Nevertheless,  Logan,  who  as  president 
of  the  council  administered  the  government  for  two 
years,  probably  felt  that  the  office  of  chancellor  was  out- 
side of  the  scope  of  his  temporary  duties  and  when 
Thomas  was  appointed  lieutenant  governor,  in  1738, 
the  court  was  not  revived.  The  proprietors  were  unwill- 
ing to  give  up  the  court  and  refer  to  the  matter  several 
times  in  their  correspondence.  "We  desire,"  wrote 
Thomas  Penn  to  Mr.  Peters,  September  28,  1751,  "that 
the  court  of  chancery  may  be  established  in  a  manner 
most  favorable  to  the  people,  without  giving  up  the 
king's  prerogative  with  which  we  are  entrusted,  we 
should  have  some  share  of  influence,  else  the  trial  would 
not  be  equal.     We  are  willing,  however,  that  the  assem- 

'  IV  Colonial  Records,  41,  February  21,  17.35-G.  The  case 
cited  to  .support  their  view  is  Stephney  v.  Lloyd,  Croke's  Reports 
(Elizabeth),  647  (1598). 

*  Appendix  to  Wharton's  Edition  of  1  Dallas's  Reports,  514. 


ISS     EARLY  COURTS  OF  PENNSYLVANIA. 

bly  should  regulate  the  court . "  ^  Nevertheless  the  assem- 
bly continued  its  opposition  until  the  end  of  the  pro- 
prietary government. 

Thus,  in  the  words  of  Horace  Binney,  Pennsylvania 
lost  this  system  of  justice  because  "her  governors  and 
representatives  could  not  agree  by  whom  the  office 
of  chancellor  should  be  held."^  The  same  dispute 
occurred  in  the  other  colonies  and  was  settled  according 
to  the  exigencies  of  local  politics.  There  is  no  indica- 
tion, however,  of  any  real  dislike  on  the  part  of  the  people 
to  the  principles  of  equity;  in  fact  the  petition  from 
Bucks  County  against  the  governor's  court  distinctly 
demanded  that  some  provision  be  made  for  such  as 
want  relief  in  equity,  by  the  erection  of  courts  of  equity 
"more  convenient  for  their  attendance  and  less  expen- 
sive to  those  who  may  have  business  there."  While 
that  from  Chester  County  requested — 

"That  Kome  Provision  suitable  to  the  Circumstances  of  the 
people  may  be  made  for  such  as  want  Relief  in  Equity,  without 
being  obliged  to  travel  from  the  remotest  parts  of  the  Province 
to  Philadelphia,  &  there  to  attend  that  Court  at  a  very  great  & 
heavy  Expence,  Which  Proceedings,  as  the  Business  of  that 
Court  does  Increase,  will  undoubtedly  become  a  very  great 
Grievance  to  the  People."^ 

It  has  been  suggested  that  the  opposition  to  the  court 
of  chancery  would  not  have  taken  concrete  form  but 
for  the  influence  of  Andrew  Hamilton  who  had  recently 
been  one  of  the  defendants  in  an  important  equity  suit 
brought  in  the  high  court  of  chancery  of  England  where 
a  decree  had  been  entered  against  him.*     But  this  is 

'  Penn  MSS.  quoted  in  Shepherd's  Proprietary  Government 
in  Pennsylvania,  395. 

^  Eulogy  on  Chief  Justice  Tilghman,  16  Sergeant  &  Rawle's 
Reports,  448. 

3  IV  Colonial  Records,  37,  February  19,  1735-6. 

*  III  Statutes  at  Large,  472;  VIII  Pennsylvania  Archives  (2d 
Series),  69. 


/ 


EARLY  COURTS  OF  PEXXSYLVAXIA.     189 

hardly  probable.  Hamilton  was  a  man  of  wealth  and 
influence  enjoying  a  large  practice,  with  a  reputation  for 
political  independence;  he  had  represented  the  pro- 
prietors in  their  controversy  with  Lord  Baltimore  and 
had  defended  the  printer,  Peter  Zenger,  in  his  famous 
trial  at  New  York,  and  his  activity  was  probably  due  to 
a  desire  to  see  the  court  put  on  a  sound  and  popular 
basis.  It  is  fascinating  to  read  into  history  the  char- 
acters of  the  chief  actors,  and  particularly  tempting 
when,  as  here,  the  strong  personalities  of  such  men  as 
David  Lloyd  and  Andrew  Hamilton  are  found  asserting 
themselves  at  the  critical  periods  for  equity  in  Pennsyl- 
vania. But  too  much  may  easily  be  made  of  this  side 
of  the  story;  the  inhabitants  were  jealous  of  the  power 
of  the  proprietors,  they  distrusted  the  governors  and 
suspected  the  purposes  of  the  Crown,  they  wanted  cheap 
justice  and  demanded  that  it  be  brought  to  their  doors, 
the  very  name  "chancery"  was  odious  and  they  would 
have  none  of  it,  while  the  governors  and  councilors,  in 
their  zeal  for  uniformity  of  practice  in  the  British 
dominions,  sacrificed  the  substance,  equity,  for  the 
shadow,  the  chancellorship. 

As  a  man,  after  an  amputation,  makes  shift  as  best 
he  can  with  an  artificial  limb,  so  Pennsylvania  proceeded 
slowly  to  construct  a  substitute  for  the  discarded  court. 
That  the  loss  was  not  acutely  felt,  or  at  least  realized,  may 
be  inferred  from  the  fact  that  we  hear  no  more  on  the 
subject  from  the  legislature,  where  real  or  fancied 
grievances  were  then  aired  \\ith  greater  persistency  than 
in  these  days  of  unlimited  appropriations  and  limited 
debates.  The  court  act  of  1722,  previously  quoted, 
conferred  upon  the  supreme  court  the  power  to  exercise 
its  jurisdiction  as  fully  as  the  justices  of  the  king's 
bench,  common  pleas  and  exchequer  at  Westminster 
might  do,  and  a  plea  might- have  been  made  for  the 
exercise  by  the  supreme  court  of  the  chancery  powers 


190     EARLY  COURTS  OF  PENNSYLVANIA. 

of  the  barons  of  the  exchequer.  But  the  ill  success  that 
finally  attended  the  efforts  of  Governor  Cosby  of  New 
York  to  maintain  this  position,  in  his  celebrated  suit 
against  his  predecessor,  Rip  Van  Dam,  would  have  dis- 
couraged any  one  from  urging  a  view  so  unpopular.* 
The  orphans'  court  was,  within  its  field,  a  court  of  equity, 
and,  in  regard  to  the  estates  of  minors,  exercised  the 
functions  of  the  chancellor. 

The  fact  that  our  pre-revolutionary  reports  are  con- 
fined to  the  notes  of  a  few  lawyers  makes  it  doubly  diffi- 
cult to  investigate  the  beginning  of  the  system  by  which 
equitable  principles  were  worked  out  through  common 
law  forms.  The  first  case  in  which  the  subject  is  men- 
tioned is  Swift  V.  Hawkins,"^  where,  in  an  action  of  debt 
on  a  bond,  the  court  under  the  plea  of  payment,  admitted 
evidence  of  want  (probably  a  misprint  for  failure)  of 
consideration,  which,  said  Chief  Justice  Allen,  was  a 
necessity,  to  prevent  a  failure  of  justice,  there  being  no 
court  of  chancery  in  the  province;  and  this,  he  said,  he 
had  known  to  be  the  constant  practice  of  the  courts  for 
thirty-nine  years  past.  If  the  chief  justice  is  accurately 
reported  this  would  carry  the  practice  back  to  1729, 
before  the  abolition  of  the  court  of  chancery,  but  Chief 
Justice  Allen  was  in  a  position  to  speak  with  authority, 
having  sat  in  the  common  pleas  as  early  as  1732. 

In  Wharton  v.  Morris,^  Chief  Justice  McKean,  in 
charging  the  jury  on  the  question  as  to  whether  a  bond 
payable  in  "lawful  current  money  of  Pennsylvania" 
could  be  paid  in  depreciated  currency,  remarked  that — 

"The  want  of  a  court  with  equitable  powers,  like  those  of 
the  chancery  in  England,  had  long  been  felt  in  Pennsylvania. 
The  institution  of  such  a  court,  he  observed,  had  once  been 
agitated  here,  but  the  houses  of  assembly,  antecedent  to   the 

■  Lamb's  History  of  New  York,  Vol.  I,  536,  Vol.  II,  54. 

2  1  Dallas's  Reports,  17  (1768). 

3  1  Dallas's  Reports,  125  (1785). 


EARLY  COURTS  OF  PEXXSYLVAXIA.  191 

revolution,  successfully  opposed  it;  because  they  were  appre- 
hensive of  increasing,  by  that  means,  the  power  and  influence 
of  the  governor,  who  claimed  it  as  a  right  to  be  chancellor.  For 
this  reason,  many  inconveniences  have  been  suffered.  No  ade- 
quate remedy  is  provided  for  a  breach  of  trust;  no  relief  can  be 
obtained  in  cases  of  covenants  with  a  penalty,  &c.  This  defect 
of  jurisdiction  has  necessarily  obliged  the  court,  upon  such 
occasions,  to  refer  the  question  to  the  jury,  under  an  equitable 
and  conscientious  interpretation  of  the  agreement  of  the  parties." 

In  the  same  year,  the  court  of  common  pleas  of  Phila- 
delphia County  in  Dor  row  v.  Kelly, '^  held  that  a  simple 
contract  debt  could  not  be  tacked  to  a  mortgage,  Presi- 
dent Judge  Shippen  saying,  that  whiJe  the  courts  of  the 
state  had  in  some  instances  adopted  chancery  rules  to 
prevent  an  absolute  failure  of  justice,  there  was  no 
necessity  in  this  case  to  usurp  the  powers  of  a  court 
of  chancery,  an  act  of  assembly  having  directed  the 
mode  of  proceeding  on  mortgages  and  confined  the 
recovery  to  principal  and  interest. 

The  first  statutory  efforts  to  give  relief  as  in  equity 
were,  naturally,  by  private  acts,  where  the  interests 
involved  were  sufficiently  important  to  warrant  a  direct 
interference  by  the  legislature.  Among  these  was  an 
act  passed  in  1757^  to  enable  certain  testamentary 
trustees  to  carry  out  an  agreement  of  the  testator  by 
the  execution  of  deeds  of  conveyance;  another  in  176 P 
to  enable  trustees  to  sell  lands  settled  in  trust  for  the 
Oxford  church  and  with  the  money  arising  therefrom 
to  purchase  other  lands;  a  third  in  1772''  confirming  the 
title  to  land  where  the  deed  had,  by  some  accident,  been 
torn  and  defaced,  and  a  fourth  in  the  same  year  where 
the  deed  had  been  lost.^     One  act  will  serve  as  an  illus- 


»  I  Dallas's  Reports,  142  (1785). 

^  September  27,  1757,  V  Statutes  at  Large,  315. 

3  March  14,  1761,  VI  Statutes  at  Large,  100. 

*  March  21,  1772,  VIII  Statutes  at  Large,  245. 

*  March  21,  1772,  VIII  Statutes  at  Large,  254. 


192     EARLY  COURTS  OF  PENNSYLVANIA. 

tration.  Godfrey  Brown  mortgaged  land  in  Chelten- 
ham township  to  the  Trustees  of  the  General  Loan  Office 
of  the  Province  and  subsequently  conveyed  to  Philip 
Fox.  Fox  paid  the  mortgage  and  then  it  was  found 
that  two  deeds  in  the  chain  of  title,  that  had  been 
pledged  to  the  trustees  according  to  the  custom  of  their 
office,  were  lost,  and,  although  diligent  search  had  been 
made  in  the  loan  office  and  elsewhere,  they  could  not 
be  found.  Therefore  "to  prevent  the  damages  and 
mischiefs  which  may  arise  from  the  loss  of  the  said 
deeds,"  on  petition  of  Philip  Fox,  it  was  enacted  that 
the  grantors  in  said  deeds  and  their  heirs  be  barred 
and  forever  excluded  from  all  claims  to  the  said  premises 
which  should  vest  in  the  petitioner  absolutely,  saving 
the  rights  of  others  than  the  said  grantors.^ 

The  first  legislative  attempt  to  give  equitable  relief 
by  a  general  act,  was  contained  in  the  Act  of  January 
22,  1774,^  to  compel  trustees  and  assignees  of  insolvent 
debtors  to  execute  their  trusts.  By  this  law  the  courts 
of  common  pleas  were  empowered,  on  petition,  to  appoint 
commissioners  to  audit  the  accounts  of  such  trustees 
and  upon  their  report  to  order  the  trustees  to  forthwith 
pay  the  creditors  their  just  proportions  of  the  funds  with 
which  they  were  charged. 

The  next  halting  step  was  taken  in  the  constitution  of 
177G  which  contained  the  following  clause: — 

"The  supreme  court  and  the  several  courts  of  common  pleas 
of  this  commonwealth  shall,  besides  the  powers  usually  exer- 

1  May  20,  1767,  VII  Statutes  at  Large,  122.  There  is  an  inter- 
esting act  of  September  29,  1781,  X  Statutes  at  Large,  366,  by 
which  a  title  was  confirmed  to  an  equitable  grantee  who  had 
failed  to  get  a  legal  title,  owing  to  the  error  of  a  conveyancer, 
but  the  commonwealth  had  a  direct  interest  in  the  case  because 
the  legal  title  had,  by  the  error  referred  to,  become  vested  in  an 
attainted  traitor  whose  lands  had  been  forfeited. 

-  VII  Statutes  at  Large,  382.  Supplied  March  24,  1818. 
7  Smith's  Laws  of  Pennsylvania,  131. 


EARLY  COURTS  OF  PENNSYLVANIA.     193 

cised  by  such  courts,  have  the  powers  of  a  court  of  chancen*-,  so 
far  as  relates  to  the  perpetuating  testimony,  obtaining  evidence 
from  places  not  within  this  state,  and  the  care  of  the  persons 
and  estates  of  those  who  are  non  compotes  mentis,  and  such 
other  powers  as  may  be  found  necessary  by  future  general  assem- 
bHes,  not  inconsistent  with  this  constitution. "^ 

No  such  other  powers  were  conferred  except  by  the 
Act  of  March  28,  178G,-  which  authorized  the  supreme 
court  upon  bill  setting  forth  the  loss  of  deeds  or  other 
writings,  to  issue  a  subpoena,  requiring  the  persons  named 
to  appear  and  answer;  to  refer  the  matter  to  a  master 
and  upon  his  report  to  make  such  order  and  decree  as 
to  justice  and  equity  should  appertain.  This  statute 
appears  to  have  been  occasioned  by  the  frequent  com- 
plaints of  the  loss  of  deeds  which  could  only  be  remedied 
by  private  acts  such  as  those  already  referred  to.  By 
the  Act  of  September  28,  1789,^  proceedings  akin  to 
discovery  were  authorized  in  foreign  attachment.  The 
plaintiff  after  judgment  against  the  defendant  was  per- 
mitted to  exhibit  interrogatories  to  the  garnishees,  who 
were  required  to  answer  under  oath. 

On  the  twenty-fourth  of  November,  1789,  there  met 
at  Philadelphia  a  convention  to  draft  a  new  constitu- 
tion for  the  state.  The  members  were  abler  and  more 
representative  men  than  those  who  had  framed  the  short- 
Hved  constitution  of  1776.  The  committee  of  nine  who 
prepared  the  first  draft  of  the  proposed  constitution 
included  James  Wilson,  William  Lewis,  Alexander  Addi- 


>  Chapter  II,  section  24  of  the  Constitution  of  1776,  Proceed- 
ings of  the  Constitutional  Conventions  of  1776  and  1790,  61; 
Act  of  January  28,  1777,  §  4;  1  Smith's  Laws  of  Pennsylvania, 
427. 

2  2  Smith's  Laws  of  Pennsylvania,  375.  This  act  was  limited 
to  five  years,  but  was  revived  and  extended  to  the  court  of 
common  pleas  in  1793  and  made  perpetual  by  the  act  of  Febru- 
ar>^  16,  1866,  P.  L.  50. 

'  2  Smith's  Laws  of  Pennsylvania,  500. 


194     EARLY  COURTS  OF  PENNSYLVANIA. 

son  and  James  Ross.  The  plan  submitted  by  them 
included  a  hit;h  court  of  chancery  presided  over  by  a 
chancellor  with  state-wide  jurisdiction,  and  a  court  of 
chancery  in  each  judicial  district,  or  circuit,  except  that 
in  which  the  high  court  should  be  held,  presided  over 
by  the  president  judge  of  the  court  of  common  pleas 
with  the  same  power  as  the  chancellor  except  that  of 
granting  injunctions  to  stay  proceedings  or  suspend 
judgments  at  law.  From  a  decree  in  chancery  in 
any  circuit  an  appeal  was  allowed  to  the  chancellor  of 
the  state.  Determined  opposition  to  this  plan  developed 
in  the  convention  and  after  a  prolonged  contest  in  com- 
mittee of  the  whole,  the  provision  for  a  court  of  chan- 
cery was  stntck  out  of  the  judiciary  article  and  limited 
equity  powers  were  conferred  on  the  existing  courts  in 
the  following  words : — 

Art.  V.  Section  VL  "The  supreme  court  and  the  several 
courts  of  common  pleas  shall,  beside  the  powers  heretofore 
usually  exercised  by  them,  have  the  powers  of  a  court  of  chan- 
cery so  far  as  relates  to  the  perpetuating  of  testimony,  the 
obtaining  of  evidence  from  places  not  within  the  state,  and  the 
care  of  the  persons  and  estates  of  those  who  are  non  compotes 
■mentis.  And  the  legislature  shall  vest  in  the  said  courts  such 
other  powers  to  grant  relief  in  equity  as  shall  be  found  necessary; 
and  may,  from  time  to  time,  enlarge  or  diminish  those  powers; 
or  vest  them  in  such  other  courts  as  they  shall  judge  proper  for 
the  due  administration  of  justice."^ 

So  ended  the  last  effort  to  obtain  a  separate  court  of 
chancery  in  Pennsylvania.  This  much  was  conceded, 
the  legislature  was  authorized  not  only  to  extend  the 
equity  powers  of  the  existing  courts,  but  to  vest  them 
in  such  other  courts  as  they  should  judge  proper.  But 
the  latter  power  was  not  exercised  by  the  creation  of  a 
separate  court,  nor  were  equity  powers  conferred  upon 

'  Proceedings  of  the  Constitutional  Conventions  of  1776  and 
1790,  159,  301,  350,  354,  362,  364. 


EARLY  COURTS  OF  PEXXSYLVAXIA.     195 

the  ordinary  courts  in  a  systematic  manner.  From  time 
to  time,  under  the  compulsion  of  sheer  necessity,  equi- 
table jurisdiction  ^\"as  extended  by  a  series  of  acts  the 
mere  recital  of  which  is  wearisome.^  Delaware,  how- 
ever, whose  political  and  judicial  history  was  so  long 
and  so  intimately  associated  with  that  of  Pennsylvania, 
took  the  step  declined  by  her  sister  commonwealth  and 
established  a  separate  court  of  chancery  by  the  consti- 
tution of  June  12,  1792.- 

As  we  have  seen,  the  constitutions  of  1776  and  1790 
expressly  conferred  upon  the  courts  the  power  to  grant 
relief  in  certain  cases.  Of  these,  the  first,  the  perpetua- 
tion of  testimony,  was  exercised  directly  under  the  con- 
stitution in  accordance  with  chancery  practice;  the 
second,  the  obtaining  of  evidence  from  places  out  of  the 
state,  by  commissions  and  rule  of  court  ;^  as  to  the 
third,  the  care  of  idiots  and  lunatics,  the  power  of  deter- 
mining the  question  of  insanity  was  exercised  through 
the  medium  of  a  commissioner  and  inquest  according 
to  chancery  practice.*  In  addition  the  legislature  by  a 
series  of  acts,  prior  to  183G,  conferred  additional  powers 
the  most  important  of  which  were  to  compel  trustees 
to  account,  to  discharge  and  dismiss  them,  to  compel 
the  conveyance  of  the  legal  estate  where  the  trust  had 
expired,  to  compel  discovery  in  aid  of  execution  in  cer- 
tain cases  relating  to  corporations  and  corporate  stock, 
and  to  compel  the  specific  performance  of  a  contract 

'  Troubat  and  Haly's  Practice,  chapter  II. 

^  American  Constitutions,  179. 

^  In  Taylor  v.  Jolly,  Supreme  Court  of  Pennsylvania,  Septem- 
ber Term,  1773,  Docket  6,  365,  there  is  a  rule  to  take  the  deposi- 
tions of  a  witness  in  New  Jersey  "before  any  magistrate  there," 
on  three  weeks'  notice. 

*  This  practice  as  well  as  the  whole  subject  of  lunatics  and 
habitual  drunkards  was  soon  afterwards  regulated  by  the  act 
of  June  13,  1830,  P.  L.  592,  and  its  supplements. 


1V)G     EARLY  COURTS  OF  PENNSYLVANIA. 

for  the  sale  of  lands,  where  the  vendor  had  died,  by  an ' 
order  empowering  the   executors   or  administrators  to 
execute  a  deed.^ 

If  the  sum  total  of  legislation  seems  meagre  today,  it 
can  only  be  said  that  public  opinion  in  regard  to  law 
reform  moves  slowly,  and  the  bar,  while  dissatisfied 
with  some  features  of  the  system,  was  not  clear  as  to  the 
direction  reform  should  take.  As  will  be  seen  presently, 
the  simpler  equities  had  been  worked  out  through  the 
common  law  actions  and  it  was  thought  practicable  to 
extend  this  method  by  the  revival  of  neglected  actions 
and  an  extension  of  their  remedial  effects.  Such  was 
the  thesis  maintained  by  Mr.  Laussat  in  his  brilliant 
essay^  and  the  favorable  reception  it  received  shows 
how  obstinately  loyal  a  bar  may  become  to  an  inade- 
quate system  that  they  have  been  taught  to  revere. 
These  views  were  respected  by  the  commissioners  to 
revise  the  civil  code  when,  in  1835,  they  took  up  the 
question  of  equity.  Some  of  the  subjects  ordinarily 
dealt  with  in  a  court  of  chancery,  such  as  mortgages, 
they  found  had  been  fully  covered  by  statutes;  others 
could  be  covered  in  the  same  manner  by  acts  that  they 
had  prepared;  others  were  within  the  sphere  of  the 
orphans'  courts.  It  was  in  the  peculiar  means  of  admin- 
istering preventive  justice  that  the  courts  of  equity 
possessed  a  decided  superiority  over  the  courts  of  law, 
and  it  w^as  here  that  the  Pennsylvania  system  was  most 
defective  and  the  recommendations  of  the  commissioners 
most  radical.  The  commissioners  were  opposed  to 
a  separate  court  of  chancery  as  unnecessary,  and 
also  opposed  to  keeping  up  a  separate  chancery 
organization  in  the  existing  tribunals.     The  courts,  they 


*  Rawle's  Equity  in  Pennsylvania,  GL 

^  Laussat's  Equity  in  Pennsylvania   (182G).     This  essay  was 
prepared  as  a  student's  dissertation  for  the  Law  Academy. 


EARLY  COURTS  OF  PENNSYLVANIA.     197 

said,  had  pursued  certain  established  modes  of  practice 
which  now  for  more  than  a  century  had  become  famiHar 
to  the  community.  "To  recast  the  whole  system  then, 
to  establish  a  class  of  equitable  remedies  for  all  equitable 
cases,  and  to  confine  the  common  law  procedure  to 
common  law  subjects,"  would  produce,  they  thought, 
"greater  inconveniences  than  any  benefit  which  might 
be  supposed  in  theory  to  arise  from  the  change."^  Upon 
the  whole,  they  thought  that  the  safest  plan  to  pursue 
was  to  give  relief  whenever  possible  by  some  familiar 
common  law  remedy,  and  when  full  relief  could  not  be 
given  by  such  process,  to  resort  by  statute  to  the  methods 
of  the  chancery  courts. 

Upon  the  recommendation  of  the  commissioners  the 
legislature  extended  the  equity  powers  of  the  courts  as 
follows  in  the  Act  of  June  13,  1836:- — 

"The  Supreme  court,  and  the  several  courts  of  Common 
Pleas,  shall  have  the  jurisdiction  and  powers  of  a  court  of  Chan- 
cery, so  far  as  relates  to — 

"I.     The  per])etuation  of  testimony: 

"II.  The  obtaining  of  evidence  from  places  not  within  the 
state : 

"III.  The  care  of  the  persons  and  estate  of  those  who  are  »o« 
compos  mentis: 

"IV.  The  control,  removal  and  discharge  of  trustees,  and  the 
appointment  of  trustees,  and  the  settlement  of  their  accounts: 

"V.  The  supervision  and  control  of  all  corporations  other 
than  those  of  a  municipal  character,  and  unincorjjorated  societies 
or  a.ssociations,  and  partnerships: 

"VI.  The  care  of  trust  monies  and  property,  and  other 
monies  and  property  made  liable  to  the  control  of  the  said 
courts. 

'  Report  of  the  Commissioners  to  Revise  the  Civil  Code  on  the 
Administration  of  Justice,  January  9,  1835. 

2  §  13,  P.  L.  784.  Article  V,  §  3  of  the  Constitution  of  1874 
deprived  the  Supreme  Court  of  original  jurisdiction  in  Equity, 
except  in  cases  of  injunction  where  a  corporation  was  a  party 
defendant.     The  district  court  was  abolished. 


198     EARLY  COURTS  OF  PENNSYLVANIA. 

"And  in  such  other  cases,  as  the  said  courts  have  heretofore 
possessed  such  jurisdiction  and  powers,  under  the  constitution 
and  laws  of  this  commonwealth. 

"And  in  every  case  in  which  any  court  as  aforesaid,  shall 
exercise  any  of  the  powers  of  a  court  of  Chancery,  the  same 
shall  be  exercised  according  to  the  practice  in  equity,  prescribed 
or  adopted  by  the  Supreme  court  of  the  United  States,  unless  it 
be  otherwise  provided  by  act  of  assembly,  or  the  same  shall 
be  altered  by  the  Supreme  court  of  this  commonwealth,  by 
general  rules  and  regulations,  made  and  published  as  is  herein- 
before provided;  and  the  Supreme  court  when  sitting  in  banc, 
in  the  city  of  Philadelphia,  and  the  court  of  Common  Pleas  for 
the  said  city  and  county,  shall  besides  the  powers  and  juris- 
diction aforesaid,  have  the  power  and  jurisdiction  of  courts  of 
Chancery  so  far  as  relates  to-  - 

"I.  The  supervision  and  controul  of  partnerships,  and  cor- 
porations other  than  municipal  cor[3orations. 

"II  The  care  of  trust  monies  and  property,  and  other  monies 
and  property  made  liable  to  the  controul  of  the  said  courts. 

"III.  The  discovery  of  facts  material  to  a  just  determination 
of  issues,  and  other  questions  arising  or  depending  in  the  said 
courts. 

"IV.  The  determination  of  rights  to  property  or  money 
claimed  by  two  or  more  persons  in  the  hands  or  possession  of  a 
person  claiming  no  right  of  property  therein. 

"V.  The  prevention  or  restraint  of  the  commission  or  con- 
tinuance of  acts  contrary  to  law,  and  prejudicial  to  the  inter- 
ests of  the  community  or  the  rights  of  individuals. 

"VI.  The  affording  specific  relief,  when  a  recovery  in  dam- 
ages would  be  an  inadequate  remedy:  Provided,  That  in  relation 
to  the  discovery  of  facts  material  to  a  just  detennination  of 
issues,  and  other  questions,  the  District  court  for  the  city  and 
county  of  Philadelphia,  shall  have  the  same  power  and  authority, 
within  its  jurisdiction,  as  is  hereby  conferred  on  the  court  of 
Common  Pleas  for  the  said  city  and  county:  And  provided  further, 
That  no  process  to  be  issued  by  the  said  courts  of  the  city  and 
county  of  Philadelphia,  or  the  Supreme  court  sitting  therein, 
under  the  chancery  powers  herein  specially  granted,  excepting 
such  as  have  heretofore  been  exercised  shall  at  any  time  be 
executed  beyond  the  limits  of  the  city  and  county  aforesaid." 

In  conferring  these  powers  the  legislature  did  not 
adopt  in  full  the  recommendations  of  the  commissioners, 


EARLY  COURTS  OF  PENNSYLVANIA.     199 

who  in  the  bill  reported  by  them  embraced  the  whole 
state  as  the  field  for  the  operation  of  chancery  remedies, 
but  confined  a  portion  to  Philadelphia  County,  yielding 
to  the  prejudices  of  the  interior  counties  where  want  of 
familiarity  with  the  forms  of  chancery  procedure  had 
created  a  special  distaste  for  a  change  in  practice.  The 
unquahfied  success  of  the  extension  of  equity  jurisdiction 
in  Philadelphia  County  led  to  a  rapid  change  of  opinion; 
in  twenty  years  the  wisdom  of  the  commission's  recom- 
mendations was  vindicated  and  the  courts  of  common 
pleas  of  all  the  counties  were  invested  with  the  same 
equity  powers  that  the  courts  of  Philadelphia  possessed.^ 
These  powers  had  in  the  meantime  been  increased  by  an 
extension  to  all  cases  of  fraud,  accident,  mistake,  ac- 
count, ^  discovery,^  dower  and  partition.*  The  exten- 
sion of  equity  jurisdiction  to  partition  was  most  advan- 
tageous, since  the  court  could  upon  bill  determine  the 
rights  of  the  parties  in  a  far  more  satisfactory  manner 
than  by  a  common  law  action,  which  would  rarely  be 
resorted  to  now  were  it  not  for  the  fear  of  the  expense 
involved  in  a  reference  to  a  master. 

A  catalogue  of  the  statutory  additions  to  the  equity 
powers  of  the  courts  would  unnecessarily  prolong  this 
discussion.  They  will  be  found  in  the  digests  and  books 
on  practice.  In  one  important  particular  it  became 
necessary  to  rectify  the  opinion  of  the  commissioners 
that  the  remedy  by  scire  facias  sur  mortgage  was  ade- 
quate by  an  extension  of  the  equity  powers  of  the 
common  pleas  to  corporation  mortgages.  It  having 
been  held  that  the  trustee  named  in  a  corporation  mort- 


1  Act  of  February  14,  1857,  P.  L.  80. 

''Acts  of  June  13,  1840,  §  39,  P.  L.  (171,  April  Hi,  184.5,  §  3, 
P.  L.  542. 

3  Act  of  April  10,  1848,  §  4,  P.  L.  449. 

*  Act  of  March  17,  184-5,  §  3,  P.  L.  158,  made  general  by  the 
Act  of  July  7,  1885,  §  1,  P.  L.  257. 


200     EARLY  COURTS  OF  PENNSYLVANIA. 

gage  could  not  maintain  a  bill  to  foreclose,  an  act  was 
passed  conferring  this  necessary  power.  ^  With  respect 
to  charities,  legislation  also  became  necessary  to  give 
effect  in  a  limited  extent  to  the  doctrine  of  cy-pres} 

As  important  as  any  clause  in  the  Act  of  1G3G  was 
that  which  empowered  the  supreme  court  to  adopt 
equity  rules  for  the  whole  state  which  the  courts  of 
common  pleas  could  neither  disregard  nor  suspend. •'' 
The  power  has  been  wisely  exercised  by  the  adoption  of 
clear  and  concise  rules  that  have  operated  as  a  check 
upon  slovenly  practice  and  furthered  that  uniformity 
which  should  characterize  the  administration  of  justice. 
In  the  interest  of  economy,  regularity  and  certainty  it  is 
unfortunate  that  the  same  course  has  not  been  adopted 
in  regard  to  actions  at  law.  A  recent  act''  provides  that 
where  a  bill  in  equity  has  been  filed,  if  the  defendant 
desires  to  question  the  jurisdiction  of  the  court,  he  must 
do  so  by  demurrer  or  answer,  explicitly  so  stating,  or 
praying  for  an  issue;  otherwise  the  right  of  trial  by  jury 
shall  be  deemed  to  have  been  waived.  If  the  demurrer 
or  answer  avers  that  the  suit  should  have  been  brought 
at  law,  that  issue  shall  be  decided  in  limine  before  hear- 
ing on  the  merits,  and  if  the  court  decide  that  the  suit 
should  have  been  brought  at  law  it  shall  certify  the 
case  to  the  law  side  of  the  court  at  the  cost  of  the  plain- 
tiff.    So,   on   appeal,   if  the   decision   of  the   appellate 


*  Ashtirst  V.  Iron  Company,  35  Pennsylvania  Reports,  30 
(1860).  Act  of  April  11,  1S62,  P.  L.  477;  Act  of  May  5,  1876, 
P.  L.  123. 

2  Act  of  April  26,  1855,  P.  L.  331. 

3  Chester  Traction  Co.  v.  Philadelphia  W.  &  B.  R.  Co.,  180 
Pennsylvania  Reports,  432  (1897). 

*  Tune  7,  1907,  P.  L.  440;  Naomi  Coal  Co.  v.  Moore,  18  Penn- 
sylvania District  Reports,  616  (1908);  Harton  v.  Hildebrand, 
57  Pittsburg  Legal  Journal,  129  (1909);  Kingston  Coal  Co.  v. 
Coal  Company,  14  Luzerne  Legal  Register,  267  (1909). 


EARLY  COURTS  OF  PENNSYLVANIA.     201 

court  is  that  the  suit  should  have  been  brought  at  law  it 
shall  remit  the  cause  with  directions  to  transfer  it  to  the 
law  side  of  the  court. 

It  is  necessary  to  say  something  in  reference  to  the 
nature  of  the  equitable  rehef  administered  through 
common  law  forms,  a  subject  of  unusual  interest  inas- 
much as  it  has  had  a  profound  influence  upon  the  develop- 
ment of  legal  procedure  in  the  commonwealth.  Inde- 
pendently of  the  form  of  action,  it  has  been  said,  "our 
courts  will  advance  the  equitable  rights  of  plaintiffs, 
where,  through  some  accident  that  occurred  anterior 
to  the  institution  of  his  suit,  or  that  happens  during  its 
pendency  his  common  law  remedy  would  be  taken  away 
or  rendered  nugatory."^  An  early  case  illustrating  this 
principle  is  Respuhlica  v.  Coates,-  an  action  of  debt  on  a 
bond  brought  in  the  supreme  court  against  the  defend- 
ant as  surety.  Levy,  for  the  plaintiff,  moved  for  a  rule 
to  show  cause  why  the  declaration  should  not  be  amended 
by  striking  out  the  profert  and  averring  the  loss  of  the 
obhgation.  Lewis  and  Serge^Pnt,  for  the  defendant,  de- 
clared that  they  would  not  object  to  the  rule  being  made 
absolute,  as  they  apprehended  a  late  authority  had 
settled  the  practice  in  England.^  The  court  made  the 
rule  absolute,  declaring  that  it  was  absolutely  necessary 
such  practice  should  be  adopted  here  to  prevent  a 
failure  of  justice,  there  being  no  court  of  chancery  to 
protect  against  such  accident. 

The  common  law  actions  that  were  made  the  vehicles 
of  equitable  rights  were  assumpsit,  debt,  covenant, 
replevin,  ejectment  and  partition;  in  fact  nearly  all  the 
personal  actions  have  been  employed  to  support  equitable 


'  Troubat  and  Haly's  Practice  (edition  of  1837),  55. 

2  1  Yeates's  Reports,  2  (1791). 

*  Read  v.  Brookman,  3  Term  Reports  (1789),  where  it  was  held 
by  a  majority  of  the  court  that  a  deed  might  be  pleaded  as  lost 
without  a  profert. 


202  EARLY  COURTS  OF  PENNSYLVANIA. 

claims.  "I  do  not  like  the  idea,"  said  Mr.  Justice 
Huston,  "that  our  equitable  powers  are  more  extensive 
in  one  form  of  action  than  another."^  Assumpsit  is  an 
equitable  action  and  lies,  according  to  the  familiar 
phrase,  in  all  cases  where  the  defendant  has  money 
which  ex  (Bquo  et  bono  belongs  to  the  plaintiff."  Thus 
where  there  had  been  a  recovery  in  ejectment  against 
tenants  and  the  landlord  died,  it  was  held  indebitatus 
assumpsit  would  lie  against  the  landlord's  executors  to 
recover  rents  received,  from  the  time  the  plaintiffs'  title 
accrued,  as  a  substitute  for  a  bill  in  equity,  and  the 
question  was  submitted  to  the  jury  as  to  whether  the 
defendant's  testator  had  misrepresented  their  title  to 
the  plaintiffs  and  concealed  the  defects  in  his  own.^ 

An  illustration  of  the  free  use  of  the  equitable 
powers  of  the  court  will  be  found  in  Bixler  v.  Ktinkle,^ 
an  action  of  assumpsit  for  money  had  and  received  by 
the  defendants  to  the  use  of  the  plaintiff.  It  appeared 
that  plaintiff's  father  had  by  his  will  directed  his  execu- 
tors to  lay  out  a  certain  sum  in  land  for  the  plaintiff's 
separate  use  and  that  the  executors  had  procured  a 
release  from  her  by  fraud  on  payment  of  about  one  half 
of  what  was  due.  Judgment  was  entered  for  the  plain- 
tiff, the  money  to  be  paid  into  court  and  expended  under 
the  court's  direction  in  the  purchase  of  land  according 
to  the  will.  Chief  Justice  Gibson,  however,  thought 
that  the  judgment  exceeded  the  powers  of  the  court, 
although  jurisdiction  to  decree  a  trust  would  be  most 
salutary. 

So  also,  where  by  articles  of  agreement  for  the  sale  of 
land  a  deed  was  to  have  been  delivered  on  a  certain 


■  Pidcock  V.  Bye,  3  Rawle's  Reports,  183  (1831)  at  page  195. 
^  See  the  cases  collected  in  Pepper  and  Lewis's  Digest  of  Deci- 
sions, Vol.  II,  col.  1632. 

3  Haldane  v.  Fisher,  1  Yeates's  Reports,  121  (1792). 
*  17  Sergeant  &  Rawle's  Reports,  298  (1828). 


EARLY  COURTS  OF  PENNSYLVANIA.     203 

date,  and  in  covenant  on  the  articles  it  appeared  that 
it  had  been  verbally  agreed  that  delivery  should  take 
place  on  a  subsequent  date.  Chief  Justice  Tilghnian  was 
of  the  opinion  that  the  action  could  have  been  supported 
if  the  declaration  had  been  amended  so  as  to  set  forth 
the  alteration  of  the  agreement.  "I  see,"  he  said,  "no 
certain  mode  of  doing  equity  to  both  parties,  but  by 
issuing  a  writ  of  covenant  in  the  usual  form  and  per- 
mitting the  declaration  to  partake  so  much  of  the  nature 
of  a  bill  of  equity  as  to  set  forth  the  truth  of  the  case. 
To  this  the  defendant  may  plead  anything  which  in 
law  or  equity  will  serve  him,  and  thus  the  parties  may 
go  to  trial  on  the  merits  of  the  case."  And  Mr.  Justice 
Gibson  added:  "The  declaration  is  in  effect  a  bill  in 
equity;  for  in  England  the  plaintiff  could  not  recover  in 
a  court  of  law:  I  cannot,  therefore,  see  why  those  equi- 
table circumstances  that  are  the  very  foundation  of 
the  action,  should  not  be  set  forth.  Performance  by 
the  plaintiff  at  a  subsequent  day,  and  acceptance  by  the 
defendant,  is  in  equity  equivalent  to  performance 
strictly  at  the  day,  and  ought  to  have  been  alleged  here. 
Principles  of  equity  cannot  be  administered  through 
common  law  forms,  strictly  such,  without  having  re- 
course to  fiction,  which  leads  to  serious  inconvenience. 
The  facts  as  they  exist  ought,  in  all  cases  where  it  is 
practicable,  to  be  set  forth." ^ 

Replevin  had  from  the  earliest  times  a  wider  scope 
than  in  England,  being  applicable  in  every  case  in  which 
goods  and  chattels  in  the  possession  of  one  person  were 
claimed  by  another.-  So  too,  in  partition  an  equitable 
estate  was  held  sufficient  to  support  the  action,  as  in 


>  Jordan  v.  Cooper,  3  Sergeant  &  Rawle's  Reports,  564  (1818). 
For  an  action  of  debt  see  Ruber  v.  Burke,  1 1  Sergeant  &  Rawle's 
Reports,  238  (1824). 

*  Weaver  v.  Lawrence,  1  Dallas's  Reports,  156  (1785). 


204     EARLY  COURTS  OF  PENNSYLVANIA. 

Stewart  v.  Brown,^  where  it  ^vas  held  that  if  a  persor 
]nirchase  land  at  a  tax  sale  under  an  agreement  that 
another  should  be  equally  concerned,  he  would  be  con- 
sidered as  holding  for  the  plaintiff  and  himself  as  tenants 
in  common.  The  technical  and  nearly  obsolete  action 
of  account  render  was  frequently  resorted  to  as  a  sub- 
stitute for  the  bill  in  equity  for  an  account.  The  action 
of  ejectment  became  at  an  early  date,  through  the 
ingenuity  of  the  courts,  the  most  important  mode  of 
enforcing  the  equity  of  a  plaintiff  in  real  property.  In 
Hawthorn  v.  Branson,^  it  is  thus  described  by  Mr. 
Justice  Duncan: — 

"The  equitable  action  of  ejectment,  in  this  state,  forms  a 
considerable  branch  of  the  law.  From  the  nature  of  our  original 
titles,  settlement-rights,  warrants  and  applications,  all  imper- 
fect rights,  so  variant  in  their  circumstances  from  other  coun- 
tries, our  courts  of  justice  have  been  obUged  to  form  a  system 
of  laws  adapted  to  this  species  of  title,  and  accommodated  to 
all  its  circumstances,  and  which,  perhaps,  could  not,  after  all 
our  experience,  be  changed  to  advantage;  and  which,  indeed, 
ought  not  to  be  changed,  however  specious  the  reason  might  be, 
as'  it  would  tend  to  destroy  all  security  of  title,  and  introduce 
new  confusion,  which  nothing  but  a  steady  adherence  to  deci- 
sions can  prevent.  And  when  to  this  is  added,  that  in  general, 
the  people  contract  by  articles  for  payment  by  instalments, 
and  the  legal  title  is  seldom  made,  until  all  the  purchase-money 
is  paid,  and  the  frequent  essignment  of  these  articles,  we  ought 
not  to  be  surprised  at  the  numerous  complicated  cafes  which 
arise  in  our  courts  of  law  and  equity;  for  they  are  courts  of  law 
and  equity  distributing  justice  by  the  same  medium — ^the  instru- 
mentality of  a  jury.  In  Pennsylvania,  equity  is  law.  Courts 
give  the  equitable  principles  to  the  jury,  as  they  lay  down  the 
legal  principles.  The  facts  are  for  the  decision  of  the  jury,  as 
all  contested  facts  must  be;  but  whether,  on  any  state  of  facts 
found  by  the  jury,  the  party  is  entitled  to  equity,  and  the  mode, 
manner  and  extent  of  relief,  is  for  the  court." 


'  2  Sergeant  &  Rawle's  Reports,  461  (1816). 
^  16  Sergeant  &  Rawle's  Reports,  269  (1827). 


EARLY  COURTS  OF  PEXNSYLVAXIA.     205 

Wherever  chancery  would  enforce  specifically  a  con- 
tract for  the  sale  of  land,  it  is  said,  the  same  relief  -v^dll  be 
granted  in  Pennsylvania  by  ejectment.^  Thus  eject- 
ment lies  by  the  vendor  against  the  vendee  in  possession 
under  articles  who  has  paid  part  of  the  purchase  money 
and  defaulted  on  the  remainder.-  So  also  by  the  vendee, 
upon  tendering  the  purchase  money. ^  Difficulties  were 
encountered,  as  might  be  expected,  in  cases  involving  a 
construction  of  the  statute  of  frauds  which  are  too  tech- 
nical for  discussion  here.* 

The  interest  of  the  assignee  of  a  chose  in  action  was 
also  recognized  and  protected  in  actions  at  law,  and  on 
the  other  hand,  the  assignee  made  liable  to  set-offs  and 
costs  in  the  same  manner  as  if  the  suit  had  been  insti- 
tuted in  his  own  name.  The  practice  which  prevailed 
from  a  time  antedating  the  Revolution  was  to  bring  the 
suit  in  the  name  of  the  assignor  and  mark  it  to  the  use 
of  the  assignee.^ 

It  was  a  somewhat  simpler  matter  to  give  effect  to  the 
equities  of  a  defendant,  since  this  did  not  involve  an 
extension  of  the  scope  of  common  law  writs  or  the  revival 
of  obsolete  actions  as  substitutes  for  chancery  proce- 
dure. The  rules  of  pleading  and  evidence  interposed 
the  chief  barrier  to  the  admission  of  equitable  defenses 


'  Laussat's  Equity  in  Pennsylvania,  Troubat  and  Haly's 
Practice,  chapter  on  Ejectment. 

2  Mitchell  V.  De  Roche,  1  Yeates's  Reports,  12  (1791). 
'  Hawnv.  Norris,  4  Binney's  Reports,  77  (1811). 

*  The  Pennsylvania  Statute  of  Frauds,  Act  of  March  21, 
1772,  1  Smith's  Laws  of  Pennsylvania,  389,  omitted  the  fourth 
section  of  the  Act  of  29,  Charles  II,  chapter  3,  making  it  possible 
to  bring  an  action  for  damages  for  breach  of  parol  contracts 
relating  to  land.  Wilson  v.  Clarke,  1  Watts  &  Sergeant's  Re- 
ports, 554  (1841).  Lewis's  Cases  on  Specific  Performance,  128. 
Pepper  and  Lewis's  Digest  of  Decisions,  Vol.  20,  col.  34592. 

*  McCidliim  V.  Coxe,  1  Dallas's  Reports,  150  (1785).  Wheeler  v. 
Hughes,  1  Dallas's  Reports,  23  (177G). 


20G     EARLY  COURTS  OF  PENNSYLVANIA. 

and  these  were  broken  down  at  an  early  period.  And 
whatever  may  be  said  as  to  the  insufficiency  of  the 
remedies  afforded  to  a  plaintiff,  it  must  be  admitted,  as 
observed  by  Mr.  Rawle,'  that  the  protection  given  to  a 
defendant  in  Pennsylvania  w^as  in  advance  of  the  law 
as  elsewhere  administered.  There  were  two  ways  in 
which  it  was  possible  to  present  the  equity  of  a  defend- 
ant, first  by  giving  evidence  of  equitable  matter,  under 
a  general  plea,  and  second,  where  from  the  nature 
of  the  case  it  was  improper  to  make  a  defense  under  a 
general  plea  by  pleading  specially  the  facts  constituting 
the  equitable  grounds  of  defense. ^ 

The  first  reported  case  describing  the  practice  of  giving 
in  evidence,  under  the  plea  of  payment,  matters  of  equi- 
table defense  is  Swift  v.  Hawkins^  already  referred  to, 
"the  Magna  Charta,"  says  Mr.  Justice  Duncan,  "of  this 
branch  of  equity."'  Seven  years  later,  in  1775,  the 
supreme  court,  to  prevent  surprise  at  trials,  adopted  a 
rule  that  every  person,  intending  to  give  special  matter 
in  evidence  under  the  general  issue,  must  give  notice  in 
writing  ten  days  before  trial  of  the  special  facts  he  in- 
tended to  rely  on  and,  because  it  had  been  adjudged 
that  under  the  plea  of  payment  the  defendant  might 
give  evidence  that  a  bond  or  specialty  was  given  "with- 
out any  or  good  consideration,"  for  the  future  in  all 
such  cases,  the  defendant  should  thirty  days  before  trial 
give  notice  in  writing  of  his  intention  to  offer  such  evi- 


'  Rawle's  Equity  in  Pennsylvania,  63. 

2  Laussat's  Equity  in  Pennsylvania,  66.  Of  the  second  class 
of  cases,  Pollard  v.  Shaffer,  1  Dallas's  Reports,  210  (1787),  is  an 
example. 

3  1  Dallas's  Reports,  17  (1768). 

*  Mackey  v.  Brownfield,  13  Sergeant  &  Rawle's  Reports,  240 
(1825). 


EARLY  COURTS  OF  PENNSYLVANIA.     207 

dence.^  From  that  day  every  practicing  attorney  in 
Pennsylvania  has,  at  some  time  in  his  career,  started 
from  his  sleep  in  the  middle  of  the  night  in  a  cold  sweat, 
wondering  if  he  did  give  notice  in  that  case  on  tomorrow^'s 
list. 

Where  an  equitable  defense  is  set  up  under  the  plea 
of  payment  with  notice  of  special  matter,  the  plea  is  a 
substitute  for  a  bill  in  ec^uity,  and  under  it  the  jury  may 
and  should  presume  everything  to  have  been  paid  which 
in  equity  and  good  conscience  the  defendant  ought  not 
to  be  compelled  to  pay.  The  nature  of  the  plea,  says 
Chief  Justice  Gibson,-  has  frequently  been  misunder- 
stood. It  is  not  the  general  issue.  As  an  equitable 
plea  it  makes  room  only  for  what  would  sustain  a  bill 
in  chancery,  and  as  a  legal  plea  it  makes  room  only  for 
evidence  of  direct  payment,  or  what  is  the  equivalent 
of  payment  where  the  plea  is  directed  by  act  of  assembly. 
The  various  equitable  defenses  permitted  under  the 
plea  may  be  classed  under  the  familiar  heads  of  fraud, 
accident,  mistake,  and  failure  of  consideration.^  The 
same  liberality  as  to  evidence  was  not  favored  under 
the  plea  of  non  assumpsit.  It  was  said  by  Chief  Justice 
Tilghman'*  that  if  the  circumstances  afforded  grounds 
for  relief  in  equity,  the  defendant  should  give  notice 
of  special  matter  under  the  plea  of  payment. 

In  the  action  of  covenant,  the  plea  of  performance,  or 
covenants  performed,  almost  obsolete  in  England,  was, 

'  Rule  of  Supreme  Court  of  Pennsylvania,  April  10,  1775, 
Docket  No.  7,  page  291.  Section  7  of  the  procedure  act  of  May 
25,  1887,  P.  L.  271,  provides:  "The  pleadings  in  all  courts  to  be 
subject  to  the  rules  of  the  respective  courts  as  to  notice  of  special 
matter." 

2  Lewis  V.  Morgan,  11  Sergeant  &  Rawle's  Reports,  234  (182o). 
Compare  Hollingsworth  v.   Ogle,  1  Dallas's  Reports,  257  (1788). 

'  Pepper  and  Lewis's  Digest  of  Decisions,  Vol.   IG,  col.  27376. 

*  Dunlap  V.  Miles,  4  Yeates's  Reports,  366  (1807). 


20S     EARLY  COURTS  OF  PENNSYLVANIA. 

with  notice  of  special  matter  held  sufficient  to  support 
any  evidence  which  would  discharge  the  defendant  in 
equity.^  In  ejectment  an  equitable  defense  would  pro- 
tect the  defendant's  possession,  but  by  statute"  the  plea 
of  "not  guilty"  was  the  only  one  allowed.  There  was 
also  permitted,  in  addition  to  the  statutory  set-off,  an 
equitable  defense  in  the  nature  of  set-off  applicable  to 
acts  of  nonfeasance  or  misfeasance  by  the  plaintiff 
connected  with  his  cause  of  action,  not  matter  of  defal- 
cation but  directed  to  the  defeat  of  the  claim  in  whole 
or  part.  As  to  replications  and  subsequent  pleadings, 
if  a  plea  w^as  put  in  founded  in  equity  the  plaintiff  was 
permitted  in  reply  to  set  up  any  special  facts  sufficient 
to  destroy  that  equity.^ 

Another  powerful  instrument  in  the  administration  of 
equity  under  common  law  forms  was  the  conditional 
verdict  frequently  used  as  a  substitute  for  an  injunction 
or  a  bill  for  specific  performance.  In  such  a  case,  where 
the  plaintiff  had  set  out  in  his  declaration  the  whole 
ground  of  his  equitable  right,  the  jury  under  the  direc- 
tion of  the  court  might  find  large  damages  to  be  released 
on  condition  of  compliance  with  the  terms  prescribed 
by  the  verdict,  which  terms  were  for  the  jury  alone  to 
impose.^  So  also  the  power  of  the  court  to  control  or 
open  judgments  has  been  exercised  according  to  equi- 
table principles  and  with  a  view  to  preventing  injustice 
under  color  of  law. 

Such  then  is  the  system  which  Horace  Binney  con- 
temptuously described  as  "a  spurious  equity  compounded 


'  Bender  v.  Fromberger,  4  Dallas's  Reports,  436  (1806). 

=  Act  of  April  13,  1807,  4  Smith's  Laws  of  Pennsylvania,  476. 

3  McCutchen  v.  Nigh,  10  Sergeant  &  Rawle's  Reports,  344 
(1823). 

^  Clyde  V.  Clyde,  1  Yeates's  Reports,  92  (1791);  Decamp  v. 
Feay,  5  Sergeant  &  Rawle's  Reports,  323;  Moyer  v.  German- 
town  Railroad  Co.,  3  Watts  &  Sergeant's  Reports,  91  (1841). 


EARLY  COURTS  OF  PEXXSYLVAXIA.  209 

of  the  temper  of  the  jvidge  and  the  feelings  of  the  jury, 
with  nothing  but  a  strong  infusion  of  integrity  to  prevent 
it  from  becoming  as  much  the  bane  of  personal  security 
as  it  was  the  bane  of  science. "^  The  early  bar,  however, 
regarded  it  much  as  a  mother  does  a  deformed  child; 
they  loved  it,  they  doctored  it  and  resented  reflections 
upon  its  s^'mmetry  and  efficiency.-  Extravagant  notions 
were  at  one  time  entertained  as  to  the  possibility  of 
extendihg  the  system  by  the  employment  of  long  for- 
gotten actions,  such  as  the  assize  of  nuisance,^  and  by 
widening  the  scope  of  the  writ  of  scire  facias  ^  As  has 
been  shown,  more  sensible  counsel  prevailed  and  limited 
chancery  powers  were  extended  to  the  courts  by  statute. 
If  the  court  of  chancery  had  been  excluded  in  the 
eighteenth  century  from  our  system  of  justice  as  the 
first  step  in  a  movement  for  the  scientific  reform  of  pro- 
cedure, the  result  might  have  been  far-reaching.  But  it 
was  not.  Political  considerations  dictated  the  change 
and  the  best  legal  opinion  of  the  day  was  adverse  to  the 
innovation.  Anglo-American  jurisprudence  was  founded 
on  the  inherited  conception  of  a  dual  system,  law  and 
equity,  each  with  its  distinct  functions.  The  excision 
of  equity  crippled  and  paralysed  the  administration  of 
justice.  Having  destroyed  chancery  forms,  the  next 
logical  step  should  have  been  to  abolish  all  distinctions 
between  common  law  forms  and  substitute  one  simple 

'  Eulogy  on  Chief  Justice  Tilghman,  16  Sergeant  &  Rawle's 
Reports,  448;  Gochenatier  v.  Cooker,  8  Sergeant  &  Rawle's 
Reports,  187  (1822),  Gibson,  J.,  at  page  192. 

^  Opinion  of  Chief  Justice  Black  in  Finley  v.  Aitkcn,  1  Grant's 
Reports  (Pa.),  83  (1854),  at  page  95. 

«  Livezey  v.  Gorgas,  2  Binney's  Reports,  192  (1809).  The  rec- 
ord of  the  trial  will  be  found  in  Brackenridge's  Law  Miscellanies, 
438.  See  also  Barnet  v.  Ihrie,  17  Sergeant  &  Rawle's  Reports, 
174  (1828). 

*  Laussat's  Equity  in  Pennsylvania,  136. 


210     EARLY  COURTS  OF  PENNSYLVANIA. 

method  of  proceeding,  under  which  equity  and  law  alike 
ct)ukl  be  administered.  But  such  a  conception  was  in 
advance  of  the  times.  Instead,  from  time  to  time  under 
the  pressure  of  necessity,  efforts  were  made  to  admin- 
ister equitable  principles  through  forms  that  even  for 
their  own  legitimate  purposes  were  fast  becoming 
archaic.  The  result  was  to  create  a  new  series  of  tech- 
nicalities requiring  a  glossary  of  their  own.  When 
chancery  powers  were  conferred  upon  the  courts,  the 
fact  that  relief  was  given  in  common  law  forms  might 
have  presented  an  obstacle  to  the  exercise  of  equity 
jurisdiction  in  many  instances,  had  not  the  courts,  by  a 
liberal  construction  of  the  acts  conferring  such  juris- 
diction, insisted  that  it  was  not  sufficient  to  oust  the 
jurisdiction  of  equity  that  complainant  had  a  remedy  at 
law,  unless  that  remedy  was  as  complete,  adequate, 
practical,  efhcient  and  convenient  to  the  ends  of  justice 
as  that  in  equity.  Nevertheless  there  are  cases  where 
the  distinction  is  still  far  from  clear,  a  situation  that 
would  be  ridiculous  were  it  not  so  serious  to  prospective 
litigants. 

Another  disadvantage  that  attended  the  system  was 
that  the  equities  of  the  respective  parties  were  to  a  large 
extent  left  to  the  chance  decision  of  a  jury,  which  is 
more  likely  to  be  guided  by  sympathy  or  prejudice  than 
the  law  of  the  case,  or,  with  the  best  intentions  in  the 
world,  is  an  unsatisfactory  tribunal  for  the  determination 
of  complicated  questions  of  fact.  No  doubt  this  is  one 
reason  for  the  great  number  of  references  to  arbitrators 
to  be  found  on  the  early  dockets. 

It  is  true  that  for  purely  defensive  purposes  the 
system  had  decided  advantages.  It  permitted  a  defend- 
ant to  put  in  an  equitable  defense  without  resorting  to 
another  jurisdiction  for  relief.  But  on  the  offensive  it 
broke  down.  The  common  law  offered  no  adequate 
substitute    for   the   bill    for   an    injunction,    to    enforce 


EARLY  COURTS  OF  PENNSYLVANIA.     211 

specific  performance  of  contracts,  to  reform  or  cancel 
instruments,  to  obtain  a  receiver,  for  the  bill  quia  timet 
and  the  bill  of  peace.  Present  social  and  commercial 
conditions  tend  to  increase  rather  than  diminish  the 
importance  of  equity  jurisdiction.  Such  matters  as 
trade-marks,  copyrights  and  patents;  corporations,  asso- 
ciations and  trusts;  trade  disputes  and  interstate  com- 
merce, present  problems  that  would  seem  almost  incapa- 
ble of  solution  except  through  chancery  procedure,  either 
in  its  original  form  or  as  assimilated  by  code  practice, 
without  a  revolutionary  reconstruction  of  the  entire 
legal  system. 

Some  reformation  of  our  procedure  belongs  to  the 
future.  Of  that  we  may  be  certain.  It  is  impossible 
to  imagine  that  our  technical  and  complicated  practice 
will  not  fall  some  day  of  its  own  weight  and  be  replaced 
by  a  procedure  clearer,  simpler  and  more  scientific.  In 
that  golden  age,  when  the  practice  of  law  will  be  a  pleas- 
ant diversion  and  the  bringing  of  a  suit  the  opening  bar 
of  a  symphony,  if  one  of  our  learned  profession  now  living 
is  permitted,  as  a  shade,  to  revisit  the  scene  of  his  earthly 
struggles,  he  will  be  able,  perhaps,  to  recognize  traces 
of  equity  procedure,  but  the  common  law  actions  will 
belong  as  completely  to  the  past  as  himself,  or,  to  put  it 
more  humanely,  as  the  actio  sacramenti  of  the  Roman 
or  the  weregeld  of  the  Saxon. 


CHAPTER  V. 

In  the  preceding  pages  brief  references  were  made  to 
the  register's  court  and  orphans'  court.  The  rise  of  the 
latter  tribunal  from  a  humble  beginning  to  its  present 
important  position  is  sufficiently  interesting  to  warrant 
a  more  detailed  account  of  its  functions  and  growth. 
However  unobtrusively  the  work  of  its  judges  may  be 
performed,  it  should  not  be  permitted  to  escape  atten- 
tion, for,  as  Judge  Duncan  grimly  puts  it,  "as  sure  as 
we  descend  into  our  graves,  so  sure  into  this  court  we 
must  come."^ 

During  the  American  colonial  period  the  settlement 
of  the  estates  of  decedents  belonged,  in  England,  prin- 
cipally to  the  ecclesiastical  courts.  Briefly,  the  terri- 
tory of  England  was  divided  into  two  provinces,  Canter- 
bury and  York,  each  presided  over  by  an  archbishop  or 
metropolitan.  Each  of  the  provinces  was  divided  into 
dioceses.  With  exceptions,  which  it  is  unnecessary  to 
particularize  here,-  the  bishop  of  the  diocese  where  the 
decedent  had  his  last  domicile  had  the  power  to  appoint 
the  administrator  and  settle  his  accounts,  and  where 
there  was  a  will,  it  was  proved  before  him  and  letters 
testamentary  issued  thereon.  When  so  acting,  he  was 
called  the  "ordinary"  and  held  what  was  called  the 
"consistory  court,"  either  in  person  or  by  a  deputy 
styled  his  commissary.  From  this  court  an  appeal 
would  lie  to  that  of  the  archbishop  and  thence  to  the 
king  in  chancery,  that  is,  to  the  "court  of  delegates," 
appointed  by  the  king's  commission  under  the  great 
seal. 

^  McPherson  v.  Cunliff,  11   Sergeant  &  Rawle's  Reports,  431 
(1824). 

2  Williams  on  Executors,  Part  I,  Book  4,  chapter  1. 


EARLY  COURTS  OF  PEXXSYLVANIA.     213 

Here  and  there  were  districts  called  "peculiars,"  ex- 
empt from  the  jurisdiction  of  the  ordinary  and  subject 
to  the  metropolitan  only.  The  court  of  appeal  of  the 
Archbishop  of  Canterbury  was  called  the  Court  of  the 
Arches,  because  formerly  held  in  the  church  of  Saint 
Mary  le  bow  (Sancta  Maria  de  arcubus) ,  and  was  pre- 
sided over  by  the  "dean  of  the  arches."  If  the  decedent 
left  bona  notabilia  or  chattels  to  the  value  of  one  hun- 
dred shillings  in  two  different  dioceses  or  jurisdictions, 
then  probate  or  administration  belonged  to  the  arch- 
bishop, by  way  of  special  prerogative,  and  the  matter 
was  cognizable  in  the  'prerogative  court"  before  a  judge 
appointed  by  the  archbishop .  ^ 

Such  a  system  was  wholly  impractical  in  America, 
where  the  principle  of  an  established  church,  even  in 
the  most  loyal  colonies,  never  gained  more  than  a  pre- 
carious foothold.  It  would  have  met  with  the  opposi- 
tion not  only  of  the  many  sects  into  which  the  emi- 
grants were  divided,  but  also  with  that,  probably,  of  the 
common  lawyers,  whose  jealousy  of  the  canonists  and 
civilians  was  then  at  its  height.  But  the  feeling  that 
probate  and  administration  were  something  separate 
and  apart  from  the  common  law  was  sufficiently  strong 
in  most  of  the  colonies  to  lead  to  the  creation  of  separate 
tribunals  for  the  exercise  of  jurisdiction  over  decedents' 
estates,  and  to  the  retention  of,  at  least,  a  supervision 
over  such  matters  by  the  governor  and  council.-  By  a 
law  of  the  colony  at  Plymouth  of  1633  wills  were  to  be 
probated  before  the  governor  and  council,^  while  in 
Maryland  in  the  records  of  the  court  held  at  St.  Mary's 
by  the  proprietor  and  his  council,  beginning   1637,  are 

»  Blackstone's  Commentaries,  Vol.  11,  590,  Vol.  Ill,  64. 
2 Article  on  Wills  by  L.  M.  Dagget  in  Two  Centuries'  Growth 
of  American  Law,  167. 

3  Laws  of  the  Colony  of  New  Plymouth  (Edition  of  1836),  32. 


214     EARLY  COURTS  OF  PENNSYLVANIA. 

many  instances  of  the  grant  of  probate  or  administra- 
tion as  well  as  of  the  settlement  of  executors'  accounts.' 
In  the  Massachusetts  Colony  probate  of  wills  was  to  be 
made  at  the  county  court,  but  by  an  act  of  1652  two 
magistrates  with  the  recorder  or  clerk  of  the  county 
court  meeting  together  were  authorized  to  allow  wills 
and  grant  administration,  reporting  to  the  county  court. ^ 
The  charter  of  1692  made  the  governor  and  council  a 
court  of  probate,  although  these  officials  seem  to  have 
exercised  their  jurisdiction  through  the  county  judges, 
with  an  appeal  reserved  to  the  governor  and  council  as  a 
supreme  court  of  probate. 

As  we  have  previously  seen,  the  Duke  of  York's  laws 
for  the  government  of  New  York  were  in  1676  put  in 
force  in  the  settlements  on  the  Delaware  by  Governor 
Andros.  These  laws  contained  minute  provisions  for 
the  care  of  the  property  of  decedents.  Upon  the  death 
of  any  person  it  was  made  the  duty  of  the  constable 
with  two  overseers  of  the  parish  to  "repair  to  the  house 
of  the  deceased  party  to  enquire  after  the  manner  of  his 
death  and  of  his  will  and  testament  and  in  case  none 
doth  appear  or  shall  be  produced,  it  may  be  taken  for 
granted  that  the  person  died  intestate,"  whereupon 
security  was  to  be  taken  for  the  care  of  the  estate  until 
the  next  court  of  sessions,  where  all  cases  of  probate  and 
administration  were  to  be  adjudged.  Administration 
was  to  be  granted  to  the  widow  or  children  upon  the 
entry  of  security  and  an  inventory  filed. 

"But  in  case  the  deceased  Dye  without  widow  or  Child, 
then  the  estate,  for  the  better  improvement  thereof  shall  be 
sould  by  order  of  the  Court  at  an  Outcry,  and  the  purchasers 
all  puting  Security,  and  Acknowledging  Judgment  for  their 
debt  which  by  the  Court  shall  be  Assigned  to  the  several  Creditors 

1  Maryland  Archives,  Judicial  and  Testamentary  Business  of 
the  Provincial  Court,  12. 

2  Laws  of  the  Colony  of  Massachusetts  (1672),  157. 


EARLY  COURTS  OF  PEXXSYLVAXIA.     215 

of  the  decendant,  and  paid  according  to  the  priority  of  Law 
and  the  Surplusage  remaining,  if  any,  to  be  deHvered  to  the 
next  kinsman  of  the  descendant,  if  he  appears  or  if  none  prove 
him.self  such  within  one  year  and  six  week.  Then  the  Court  to 
give  an  accompt  of  the  said  Surplusage  to  the  Govemour.  And 
when  the  widow  or  Child  Administers  the  surplusage  after  debts 
paid  and  the  funerall  Charges  according  to  the  quality  of  the 
person  allowed  for,  shall  be  equally  divided  between  the  Widow 
and  Children,  viz.  one  third  of  the  personall  Estate  to  the 
widow  and  the  other  two  thirds  amongst  the  Children,  provided 
the  Eldest  Sonne  shall  have  a  double  portion,  and  where  there 
are  no  Sonnes  the  daughters  shall  Inherit  as  Copartners,  and 
if  any  of  the  Children  shall  happen  to  dye  before  it  come  to 
age  his  portion  shall  be  divided  amongst  the  surviving  Children. 

"If  any  person  shall  renounce  his  Executorship  or  that 
none  of  the  friends  or  kindred  of  the  deceased  party  that  shall 
die  intestate  shall  seeke  for  Administration  of  such  persons 
Estate,  then  the  Constable  of  the  Town  where  any  such  person 
shall  die,  shall  give  notice  thereof  to  the  next  Court  of  Sessions; 
that  so  the  Court  may  take  order  therein,  as  they  shall  think 
meet,  who  shall  also  allow  such  Constable  due  recompence  for 
his  pains  But  if  the  Constable  shall  fail  therein,  he  shall  forfeit 
forty  Shillings  to  the  publigue  Treasury. 

"That  the  Clarke  of  the  .sessions  when  he  carries  the  Probates 
or  Commissions  of  Administration  to  be  signed  do  then  also 
Certify  unto  the  recorders  Office  at  New  York,  the  name  of 
the  testator  or  the  party  deceased  the  Executors  or  Adminis- 
trators and  their  Security,  the  County  and  Parrish  where  they 
dwelt  And  the  Court  wherein  the  Administration  is  granted  to 
the  end  that  strangers  and  other  Creditors  invested  in  the 
Estate  may  be  the  better  Enabled  to  find  out  the  Records  in 
which  the  accompts  of  the  estate  is  entered  and  be  informed 
how  they  may  come  to  their  just  dues."' 

Executors  failing  to  probate  walls  and  persons  inter- 
meddling with  the  goods  of  a  decedent  were  made  liable 
for  the  debts  of  the  decedent  whether  the  estate  was 
sufficient  for  that  purpose  or  not. 

The  conferring  of  probate  jurisdiction  upon  the  courts 
of  sessions  is  an  indication  of  New  England  influence  in 


'  Charter  and  Laws  of  Pennsylvania,  5,  6. 


216  ExVRLY  COURTS  OF  PENNSYLVANIA. 

the  framing  of  the  laws.  About  lOSG  instructions  from 
the  home  government  reserved  to  the  governor  the 
probate  of  wills,  after  which  the  governor  or  the  secre- 
tary of  the  province  exercised  this  jurisdiction,  and  a 
department  grew  up  in  the  secretary's  office  know^n  as 
the  prerogative  court,  whose  jurisdiction  was  exercised 
in  minor  matters  by  local  delegates.  The  prerogative 
court  was  not  succeeded  by  a  court  of  probate  until  1778. 
In  the  territories  on  the  Delaware  the  ordinance  of 

1676,  putting  in  force  the  Duke  of  York's  laws,  did  not 
expressly  concede  to  the  local  courts  the  right  to  grant 
administration  or  probate  wills,  and  such  matters  were 
in  the  hands  of  the  authorities  at  the  seat  of  government. 
A  case  in  New  Castle  against  a  deceased  person  was  on 
April  4,  1677,  continued  until  the  "letter  of  administra- 
tion bee  come  from  New  York."^  Prior  to  this,  the 
justices  of  the  court  at  New  Castle,  in  a  letter  to  Governor 
Andros,  dated  February  8,  1677,  giving  an  account  of 
local  affairs,  made  the  following  request: — 

"That  yo I"  Honor  will  bee  pleased  soe  far  to  Impower  the 
Commander  Capt"  John  Colier  or  the  Court  that  wills  may  bee 
proved  before  them  and  Letters  of  Administracon  granted 
accordingly  wth  ye  fees  for  the  estates  of  the  most  part  of  the 
People  in  these  parts  are  so  Inconciderable  that  otherwyse 
the  Charges  &  Expenses  of  going  to  yo^  hono*"  Att  New  Yorke 
for  to  obtaine  the  same  may  Prove  mutch  to  the  hinderance  of 
such  Estates."^ 

To  which  the  governor  replied  in  a  letter  dated  April  6, 

1677,  and  read  at  the  court  held  June  8,  1677: — 

"The  severall  Co^ts  May  att  a  session  take  proofes  and  security 
and  grant  administracon  of  wills  but  if  above  twenty  pounds 
to  remit  the  same  here  to  the  secretary's  office  to  bee  recorded."^ 


1  Records  of  the  Court  of  New  Castle,  74. 

2  Records  of  the  Court  of  New  Castle,  66. 

3  Records  of  the  Court  of  New  Castle,  98. 


EARLY  COURTS  OF  PENNSYLVANIA.     217 

The  court  availed  itself  of  this  permission  at  once  and 
several  wills  were  proved  at  this  term  of  court.  The 
procedure  in  one  case  will  serve  as  an  illustration. 
Rebecca  Eghberts,  widow  of  Barent  Eghberts,  deceased, 
produced  the  will  of  her  husband  dated  October  20, 
1674.  The  two  witnesses  swore  that  they  were  present 
and  saw  the  testator  sign  the  will.  The  court  then 
granted  "administration"  according  to  the  will  and 
directed  that  it  be  recorded.  In  other  estates,  where 
the  decedents  died  intestate,  administration  in  the 
proper  sense  was  granted. 

Under  the  power  conferred  upon  William  Penn  in  the 
charter  of  Pennsylvania,  to  appoint  judges,  magistrates 
and  other  officers,  it  was  provided  in  the  laws  agreed 
upon  in  England  that  there  should  be  a  register  for 
births,  marriages,  burials,  wills  and  letters  of  administra- 
tion distinct  from  the  office  for  enrolling  deeds. ^  This 
provision  was  incorporated  in  the  "Great  Law"  or  body 
of  laws  passed  at  Upland,  December  7,  1682,-  and 
Christopher  Taylor  was  appointed  Register  General  for 
the  province  and  territories.  The  register  general  kept 
his  office  at  Philadelphia  and  commissioned  deputies 
to  act  in  the  respective  counties.  Taylor,  according  to 
Proud, ^  was  a  well  educated  Yorkshireman,  an  eminent 
Quaker  preacher  and  the  author  of  several  tracts  in 
defense  of  their  principles.  He  was  also  a  member  of 
the  first  provincial  council,  but  did  not  live  long  to  enjoy 
his  honors,  dying  in  the  early  part  of  1686.  His  own 
will  is  No.  26  on  the  register. 

The  first  -^^-ill  on  record  is  that  of  Thomas  Fream, 
proved,  apparently,  October  10,  1682.  Wills  and  adminis- 
trations were  kept   in  separate  volumes,  as  is  still  the 

'  Charter  and  Laws  of  Pennsylvania,  lOL 
*  Charter  and  Laws  of  Pennsylvania,  119. 
2  Proud's  History  of  Pennsylvania,  Vol.  I,  236. 


21S     EARLY  COURTS  OF  PENNSYLVANIA. 

practice.  The  first  entries  are  bnef  and  informal  and  it 
probably  took  some  time  to  settle  the  forms  and  practice 
of  the  office.  The  following  entry  will  serve  as  an  ex- 
ample : — 

"Philadelphia  in  the  Province  of  Pennsylvania  2  ~  1683. 

"Wheras  Mary  Mason  Relict  of  the  deceased,  John  Mason 
did  the  day  of  the  date  thereof  appear  before  me,  Christopher 
Taylor,  Regi.ster  Genii  of  the  said  Province,  &c.  desiring  to 
take  out  Letters  of  Administration  upon  the  estate  of  the  said 
John  Mason  and  having  given  in  and  attested  an  Inventory  of 
the  said  estate  with  sufficient  security  to  pay  his  debts  and 
dispose  of  the  remainder  according  to  law  I  do  by  virtue  of  my 
Commission  from  William  Penn,  Proprietary  and  Govemr  of  the 
said  Province  and  Territories  grant  Letters  of  Administration 
to  the  said  Mary  Mason  for  the  ends  and  purposes  aforesaid. 
Under  my  hand  and  the  seal  of  my  office. 

"Christopher  Taylor, 

"Regist.  Genii     (SEAL)" 

William  Clark,  the  deputy  register  for  Kent  and 
Sussex  counties,  had  served  as  a  justice  in  the  court  at 
the  Whorekills  under  the  previous  government  and 
became  chief  justice  of  the  provincial  court  in  1703. 
One  of  his  entries  is  as  follows: — 

"Whereas  William  Darnall  of  the  County  of  Kent,  Marchant, 
did  the  day  of  the  date  hereof  appeare  before  me,  William 
Clark,  deputy  Register  of  the  Countys  of  Sussex  and  Kent  in 
the  territories  of  the  Provience  of  Pensilvania;  and  desireth 
as  princable  Creditor  to  take  out  Letters  of  Administracon 
upon  the  estate  of  Andrew  Stocker,  deceased,  And  haveing 
Given  me  Good  and  sufficient  securiety  to  bring  in  unto  me  a 
true  inventory  of  the  estate  that  the  said  Andrew  Stocker  dyd 
possessed  of  within  one  moneth  after  the  date  hereof  soe  fer 
as  the  same  shall  com  to  his  knowlidge  And  also  to  pay  his  debts 
soe  fer  as  the  Estate  will  extend  and  dispose  of  the  Remayner 
According  to  Law,  I  doe  therefor  by  the  authority  of  William 
Penn,  Proprietary  and  Govemr  of  the  Provience  of  Pensilvania 
and  the  Territories  thereunto  belonging  &  by  commicon  from 
Christopher  Taylor,  Register  General  of  the  provience  of  Pen- 


EARLY  COURTS  OF  PEXXSYLVANIA.     219 

silvania  and  the  Counties  of  Sussex  and  Kent  Grant  Letters 
of  Administracon  to  the  said  William  Darnall  for  the  ends  and 
purposes  A  for  said.  Given  under  my  hand  and  scale  of  my 
office  the  18th  day  of  "5?  In  the  year  of  our  Lord  according  to 
the  English  account  1683. 

"William  Clark."' 

In  the  same  volume  are  recorded  inventories  of  estates 
as  well  as  records  of  births,  deaths  and  marriages.  The 
following  is  curious : — 

"These  are  to  give  notice  unto  all  persons  whatsoever  that 
there  is  a  Marriage  shortly  intended  to  be  solmonized  Betwene 
Abraham  Westron,  widdower,  and  Mary  Smith,  widdow,  if  any 
person  have  an>^hing  justly  to  object  wherefor  the  said  parties 
should  not  be  Joyned  together  in  marriage  Let  them  Give  in 
there  Exceptions  unto  me  to  the  end  that  the  same  may  be 
prevented  or  elce  forever  after  to  be  silant  in  that  case,  dated 
at  Lewis  the  5  day  of  the  ^  1683.  William  Clark." 

During  its  existence  the  office  of  register  general  was 
held  by  men  of  importance,  including  Governors  Black- 
well,  Markham,  Evans  and  Gookin,  who  probably  kept  it 
themselves  on  account  of  the  fees,  while  among  the 
deputy  registers  were  Patrick  Robinson  and  David 
Lloyd  whose  activities  in  poHtical  and  legal  affairs  have 
been  referred  to  before. 

The  duties  of  the  register  general  and  his  deputies 
were  not  defined  by  legislation  until  the  passage  of  the 
Act  of  January  12,  1705,-  an  elaborate  measure  relating 
to  the  probate  of  written  and  nuncupative  wills.  This 
act  in  its  last  section  provided  for  the  appointment  of 
the  register  general  by  the  governor  and  required  him 


*  Sussex  County  Records,  MSS.  Historical  Society  of  Penn- 
sylvania. For  similar  entries,  see  Turner's  Sussex  County  Rec- 
ords, 133. 

2  II  Statutes  at  Large,  194;  II  Colonial  Records,  238,  Janu- 
ar>'  12,  1705.  • 


220     EARLY  COURTS  OF  PENNSYLVANIA. 

to  keep  an  ofifice  at  Philadelphia  and  appoint  deputies 
for  the  other  counties,  as  had  been  the  practice.  All 
of  these  officers  were  required  to  give  bonds  for  the 
faithful  performance  of  their  duties,  which  were  to  be 
recorded  in  the  orphans'  court  and  to  be  for  the  use  of 
parties  aggrieved. 

Failure  to  keep  these  positions  filled  seems  to  have 
caused  dissatisfaction,  for  an  act  was  passed  June  7, 
1712,^  which,  after  reciting  that  "no  register  has  been 
commissioned  and  deputies  constituted  in  each  county 
as  the  act  (of  1705)  directs,"  goes  on  to  enact  that  in 
case  of  the  removal  of  the  register  general  by  death,  or 
otherwise,  another  fit  person  should  be  commissioned 
within  three  weeks;  that  if  the  governor  failed  to  act, 
the  agents  of  the  proprietor  should  appoint,  and  if  they 
too  failed,  the  judges  of  the  common  pleas  of  Phila- 
delphia should  make  the  appointment.  Governor  Gookin 
thought  that  two  months'  time  was  little  enough  to 
appoint  the  officer,  and  that  the  office  should  be  kept  at 
Philadelphia  for  the  whole  province,  for  the  greater 
security  of  the  public.  The  distance,  he  said,  was  no 
objection,  for  it  was  well  known  that  people  in  England 
traveled  much  farther  on  such  occasions.^  Neverthe- 
less he  finally  agreed  to  the  bill  which  became  a  law  and 
was  approved  by  the  queen  in  council  February  20, 
1713-4.3 

In  this  statute  it  was  also  enacted — 

"That  where  objections  are  made  or  caveats  entered  against 
the  proving  of  any  will  or  granting  letters  of  administration, 
and  where  there  is  or  shall  be  occasion  to  take  the  final  accounts 
of  executors  or  administrators,  or  make  distribution  of  de- 
cedents' estates,  the  register-general  and  his  deputies,  respec- 
tively, shall,  in  every  such  case,  call  to  their  assistance  two  or 

1  II  Statutes  at  Large,  421. 

2  II  Colonial  Records,  576,  May  27,  1712. 
«  II  Statutes  at  Large,  541. 


EARLY  COURTS  OF  PENNSYLVANIA.     221 

more  of  the  justices  of  the  said  court  of  common  pleas  for  the 
county  where  they  are  concerned,  who  are  hereby  empowered 
and  required  to  give  their  assistance  accordingly  to  decide  the 
said  caveats  and  matters  in  controversy,  settle  the  said  accounts, 
make  distributions,  and  do  all  such  other  judicial  acts  as  do  or 
shall  belong  or  ought  of  right  to  be  done  by  any  person  or 
persons  having  power  b}^  law  to  take  probate  of  wills  and  grant 
administration . " ' 

This  is  the  origin  of  the  register's  court,  as  to  which 
more  will  be  said  hereafter.  It  will  be  noticed  that  the 
act  seems  to  contemplate  the  taking  of  accounts  of 
executors  and  administrators  before  this  court,  but  this 
jurisdiction,  if  ever  exercised,  must  have  been  very 
limited,  for  the  orphans'  court  already  had  jurisdiction 
of  such  accounts  in  cases  of  intestacy^  and  where  the 
interests  of  minors  were  involved,  a  jurisdiction  defined 
and  amplified  by  an  act  passed  in  the  following  year.^ 
When,  more  than  one  hundred  years  later,  the  act  of 
1712  was  invoked  as  authority  for  an  attachment  issued 
by  the  register's  court  to  compel  an  administrator  to 
account,  the  supreme  court  in  discharging  the  prisoner 
on  a  writ  of  habeas  corpus  said,  per  Tilghman,  C.  J.  :— 

"This  law  has  never  been  expressly  repealed,  and  .so  far 
as  concerns  caveats,  it  has  been  always  in  force.  But  the  final 
settlement  of  the  accounts  of  executors  and  administrators, 
and  making  di.stribution  of  the  estates  of  intestates,  having 
been  expressly  given  to  the  Orphans'  Court  by  the  Act  of 
27  March,  1713,  the  jurisdiction  of  the  Register's  Court,  on 
these  subjects,  has  been  supposed  to  be  taken  away  by  impli- 
cation, and  for  a  long  course  of  time  the  practice  has  been 
to  settle  final  accounts  in  the  Orphans'  Court  and  not  in  the 
Register's  Court.  *  *  *  We  are  of  opinion,  that  at  the  time 
of  the  adoption  of  this  constitution,  the  Act  of  1712,  so  far  as 
concerned   the   final   settlement   of  accounts  of  executors  and 


'  II  Statutes  at  Large,  423,  §  3. 

2  Act  of  January  12,  1705,  II  Statutes  at  Large,  199. 

3  Act  of  March  27,  1713,  III  Statutes  at  Large,  14. 


222     EARLY  COURTS  OF  PENNSYLVANIA. 

administrators,  was  not  in  force,  being  either  repealed  by  im- 
plication or  obsolete."' 

As  a  matter  of  fact  the  Orphans'  Court  Act  of  1713  was 
introduced  in  the  assembly  on  February  10,  1712,  and 
passed  on  the  sixteenth  of  the  same  month,  before  the 
register's  act,  but  was  held  over  by  the  governor,  as  too 
important  to  be  hurried,  and  submitted  to  Judge 
Mompesson  for  his  opinion.  The  judge  returned  the 
bill  to  the  governor  March  25,  1713,  with  several  pro- 
posed amendments.  To  these  the  assembly  refused  to 
accede  and  the  governor,  considering  the  amendments 
not  essential,  agreed  to  the  passage  of  the  bill,  which 
became  a  law  on  March  27,  1713.^ 

During  the  administration  of  Governor  Fletcher  the 
council  heard  an  informal  appeal  from  the  probate  of  a 
will  by  Markham,  as  appears  in  the  minutes  of  the 
council  for  June  5,  1694. 

"His  Excellie  BENJAMIN  FLETCHER. 
"Wm.  Markham,  Esq'.,  Leiv*  Governor. 

Andr  Robeson,  ^ 

pat.   Robinson,  V  Esqrs.  Wm.  Clarke,  7  ^     yg 

Wm.   Salway,     )  Geo.  fonnan,  f 

"His  Excellie  Having  ordered  the  Hearing  of  what  might  be 
offered  agt  the  will  of  peter  de  buc,  deceased,  and  severall 
things  being  offered  by  sundrie  persons,  wherein  they  seem  to 
insinuate  there  was  fraud  and  Collusion  in  the  making  thereof, 
His  Excellie  did,  upon  hearing  therof,  dismiss  the  people,  and 
desired  the  Councill  to  give  their  opinions  upon  the  whole 
matter,  Whether  or  not  the  will,  which  was  proved  befor  the 
Leivt  Governor,  Can  be  allowed  or  not;  Which  being  putt  to  the 
vote  amongst  the  members  of  Councill,  was  caried  in  the  afifirm- 
ative,  &  his  Excellie  did  allow  yrof."^ 


^Commonwealth  v.   Brady,  3  Sergeant  &  Rawle's,  309  (1817). 

2  Charter  and  Laws  of  Pennsyvlania,  302. 

3  I  Colonial  Records,  407,  June  5,  1694. 


EARLY  COURTS  OF  PENNSYLVANIA.     223 

The  care  of  the  persons  and  property  of  orphans  was 
a  subject  that  seems  to  have  particularly  appealed  to 
the  philanthropic  founder  of  the  commonwealth.  In 
England,  the  lord  chancellor  was  the  supreme  guardian 
of  all  infants  and  the  conduct  of  both  guardian  and 
ward  was  within  the  controlling  jurisdiction  of  chan- 
cery.^ As  we  have  already  seen,  that  court  was  not  in 
favor  with  Penn  or  his  fellow  colonists,  and,  in  respect 
to  this  branch  of  its  jurisdiction,  they  were  lucky  enough 
to  establish  a  substitute  founded  on  precedent  and  suc- 
cessful in  operation,  the  orphans'  court. 

The  name  as  well  as  the  early  jurisdiction  of  this 
court  was  borrowed  from  the  Court  of  Orphans  of  the 
city  of  London.^ 

"It  has  been  resolved,"  says  Bohun, — 

"That  there  hath  been  a  Court  of  Orphans  time  out  of  mind 
in  London;  and  that  there  hath  been  a  Custom,  if  any  Freeman 
or  Freewoman  die,  leaving  Orphans  within  age  unmarried,  that 
the  said  Court  have  had  the  custody  of  their  Body  and  Goods: 
And  that  the  Executors  and  Administrators  have  used,  and 
ought  to  exhibit  true  Inventories  before  them;  and  if  any  Debt 
appear  due,  to  become  bound  to  the  Chamberlain  to  the  use  of 
the  Orphans  in  a  reasonable  Sum  to  make  a  true  Account  upon 
Oath  of  them,  after  they  have  been  received  and  if  they  refuse,  to 
commit  them  till  they  will  become  bound ;  and  this  was  adjudged 
to  be  a  reasonable  Custom."* 


'  I  Blackstone's  Commentaries,  463. 

^Wimmer's  Appeal,  1  Wharton's  Reports,  102  (1836).  The 
court  of  the  burgomaster  and  schepens  of  the  city  of  New  York 
acted  as  an  orphans'  court  during  the  Dutch  period.  To  relieve 
the  court  of  this  work  Stuyvesant  created  a  separate  court  of 
orphan  masters,  which  ceased  to  exist  when  the  colony  passed 
into  the  hands  of  the  English.  Scott's  History  of  the  Courts 
of  New  York  (1909),  40;  Records  of  the  Court  of  New  Amster- 
dam, Vol.  II,  341.  There  is  no  evidence,  however,  that  this 
court  influenced  Penn  in  establishing  orphans'  courts  in  Penn- 
sylvania. 

'  Bohun's  Privileges  of  London  (Edition  of  1723),  314. 


224     KARLY  COURTS  OF  PENNSYLVANIA. 

The  court,  it  is  further  said,  was  held  before  the  lord 
mayor  and  aldermen  of  the  city  of  London.  The  com- 
mon sergeant  of  the  city  took  the  inventories  and 
accounts,  while  all  securities  for  the  orphans'  portions 
were  taken  in  the  name  of  the  city  chamberlain.  The 
court  could  commit  the  custody  of  an  orphan  to  such 
person  as  they  thought  fit,  even  when  the  father  had 
devised  the  custody,  and  if  any  person  married  an 
orphan  without  the  consent  of  the  court,  such  person 
might  be  "fined  by  them  according  to  the  Quality  and 
Portion  of  the  Orphan;  and  unless  such  Person  do  pay 
the  Fine,  or  give  Security  to  pay  it,  the  Court  may 
commit  him  to  Newgate,  to  remain  there  till  he  submit 
to  their  Orders." 

Upon  the  death  of  a  freeman  the  widow  or  executor 
was  summoned  to  bring  in  an  inventory  and  appraise- 
ment, and  when  the  inventory  was  so  exhibited,  the 
executor  was  bound  either  to  pay  the  money  due  the 
orphans  into  the  chamber  of  London,  where  interest 
was  allowed,  or  to  find  security  by  bond  or  recognizance 
to  pay  the  amount  due.  When  the  orphans  came  of 
age  or  married,  with  the  consent  of  the  court,  they  were 
brought  into  court  with  a  person  to  prove  their  age  and 
there  acknowledged  satisfaction  for  their  respective  por- 
tions. 

Although  somewhat  paternal,  according  to  our  view, 
the  system  was  an  undoubted  privilege  when  compared 
with  the  burdensome  incidents  of  feudal  wardship,  and, 
even  in  1682,  when  wardship  had  been  abolished  over 
twenty  years, ^  the  citizen  preferred  his  own  court,  to 
chancery,  wath  its  aggravating  delays  and  extortionate 
fees.  Once  indeed,  the  city  fathers  betrayed  their  trust. 
King  Charles  II  succeeded  in  obtaining  from  the  city  a 
loan  of  the  orphans'  moneys,  paying  interest  thereon 

1  Act  of  12  Charles  II,  chapter  24  (1660). 


EARLY  COURTS  OF  PENNSYLVANIA.     225 

until  1671,  when  he  closed  the  Exchequer  "and  thereby 
became  not  only  Bankrupt  himself,  but  occasioned  the 
Chamber  of  the  said  City  to  be  so  also:  whereby  many 
Thousand  of  City  Orphans  {heu  Pietas  Regum!)  were 
reduced  to  misery  and  want,"' — a  wrong  that  remained 
unredressed  until  the  reign  of  William  and  Mary.- 

At  the  second  session  of  the  legislature  under  the  pro- 
prietorship of  Penn,  March  10,  1683-,  it  was  enacted — 

"That  the  Justices  of  each  respective  County  Court,  shall 
sitt  twice  every  year,  to  inspect  and  take  Care  of  the  Estates, 
usage,  and  Employment  of  Orphans,  which  shall  be  called  The 
Orphans'  Court,  and  sitt  the  first  third  day  of  ye  week,  in  the 
first  and  eighth  month  yearly;  That  Care  may  be  taken  for  those, 
that  are  not  able  to  take  care  for  themselves."^ 

The  same  assembly  also  provided  that  executors  and 
guardians  should  give  bonds  and — 

"If  any  man  shall  refuse  this  honest  Care  and  Charge  in 
the  government,  Unless  hee  hath  five  children  to  take  care  of, 
or  is  already  executor  to  one  Will  or  hath  persons  nearer  re- 
lated to  him,  who  in  all  likelihood  will  impose  that  Charge 
upon  him;  hee  shall  be  fined  at  the  Discretion  of  the  Governor 
and  Provincial  Council."* 

Whether  this  court  was  suggested  by  Penn  himself  or 
by  one  of  his  followers  the  minutes  of  the  council  do  not 
show.  But,  at  any  rate,  the  idea  commended  itself  to 
the  proprietor,  for  he  mentions  it  in  a  letter  to  the  Free 
Society  of  Traders  dated  August  16,  1683.  "Spring  and 
fall,"  he  writes,  "there  is  an  orphans'  court  in  each 
county  to  inspect  and  regulate  the  affairs  of  orphans 
and  widows."     In  fact  the  minutes  of  the  Bucks  County 


>  Bohun,  336. 

2  Act  of  5  and  6  William  &  Mary,  chapter  10. 

3  Charter  and  Laws  of  Pennsylvania,  131. 
*  Charter  and  Lav/s  of  Pennsylvania,  142. 


22G  -   EARLY  COURTS  OF  PENNSYLVANIA. 

court  show  Penn  presiding  in  an  orphans'  court  con- 
temporaneous with  if  not  prior  to  the  passage  of  the  act. 

"Pennsilvania  Bucks  SS.  At  an  orphans'  court  held  by  the 
King's  authority  in  the  name  of  William  Penn,  Proprietary  and 
Governor  of  the  said  Province  and  territory  thereto  belonging 
at  Gilbert  Wheelers'  for  the  aforesaid  County,  the  4th  day  of 
the  first  month  1683,  to  take  account  of  improvements  and 
usage  of  estates  of  Ofphans. 

"Present,  the  Governor,  William  Penn,  Justices — James 
Harrison,  Jona  Otter,  Wm.  Yardley,  Wm.  Berks,  Thomas 
Fitzwater  and  Phineas  Pemberton  Clark. 

"The  next  meeting  held  by  adjournment  11,  1  mo.  1683, 
Present — Wm.  Penn,  Governor,  James  Harrison  and  Wm. 
Berks,  Justices."' 

At  this  time  some  of  the  business  that  belonged  to  the 
register  general  and  much  that  afterwards  fell  to  the 
orphans'  court  was  transacted  in  the  provincial  council. 
In  several  instances  administrators  were  appointed.^ 
One  estate  that  seems  to  have  given  some  trouble  was 
that  of  Christopher  Taylor,  the  former  register.  It 
appeared  that  he  had  named  the  proprietor  and  another 
as  his  executors,  both  of  whom  were  absent  at  the  time 
of  his  death.  Administration  was  refused  to  the  son  as 
contrary  to  the  intention  of  the  will  and  a  temporary 
administrator  was  appointed,  who  was  to  account  to 
the  executors  or  the  council.^ 

The  most  frequent  applications  to  the  council  were 
those  for  the  sale  of  land  for  the  payment  of  decedents' 
debts.  Penn  in  the  laws  agreed  upon  in  England  had 
incorporated  a  provision  that  lands  and  goods  should  be 

1  Address  of  Peter  McCall,  Esq.,  before  the  Law  Academy 
(1838). 

2 1  Colonial  Records,  39,  20,  12  mo.  1683;  I  Colonial  Records, 
62,  18  4  mo.  1684. 

3  I  Colonial  Records,  137,  5,  5  mo.  1686;  138,  6,  5  mo.  16S6; 
143,  21  September,  1686. 


EARLY  COURTS  OF  PENNSYLVANIA.     227 

liable  for  debts  except  where  there  was  legal  issue  and 
then  all  the  goods  and  one  third  of  the  land  only/  which 
provision  was  incorporated  in  the  Act  of  December  10, 
1GS2.-  The  orphans'  court  was  by  the  Act  of  10,  3  mo., 
1688,  empowered,  with  the  approval  of  the  governor  and 
council,  to  permit  the  widow  or  administrator  to  sell 
lands  to  defray  debts,  educate  the  children,  support  the 
widow  and  improve  the  remainder  of  the  estate.^  After 
passing  through  minor  changes  of  form  this  act  was 
supphed  by  the  Act  of  November  27,  1700,*  which  gave 
the  jurisdiction  to  the  orphans'  court  without  the  inter- 
vention of  the  council.  This  act  was  disapproved  by 
the  queen,  on  the  advice  of  the  attorney  general,  as  not 
sufficiently  protecting  marriage  settlements  and  the 
interests  of  the  children,^  but  the  same  provisions  were 
incorporated  in  the  intestate  Act  of  January  12,  1705,^ 
in  terms  carefully  framed  to  meet  these  objections  and 
the  act  became  a  law.  It  is  interesting  to  note  that  what 
was  perhaps  the  first  order  of  sale  for  debts  was  verbal, 
as  would  appear  from  the  following  extract  from  the 
minutes  of  the  council : — 

"The  Petition  of  Mary  Mason,  Widdow,  was  Read;  Requesting 
ye  Councill  to  Confirme  ye  Sale  of  Lotts  and  Lands  sold  by  ye 
said  Widdow,  by  ye  Gov^s  Verball  order,  to  pay  her  Deceased 
husband's  Debts,  and  for  subsistence  of  herselfe  and  Children. 

"James  Harrison  being  present  &  attesting  ye  truth  of  ye 
Order,  and  she  declaring  yt  ye  Land  sould  was  ye  Citty  Lotts, 
and  ye  Liberty  Land,  and  but  two  hundred  Acres  out  of  one 
thousand,  and  not  ye  Land  y*  was  Improved;  ye  Councill  ordered 
a   Confirmation.'" 


'  Charter  and  Laws  of  Pennsylvania,  100.     See  page  28,  supra. 

*  Charter  and  Laws  of  Pennsylvania,  120,  181. 

*  Charter  and  Laws  of  Pennsylvania,  180;  I  Colonial  Records, 
176,  12,  2  mo.  1688. 

*  II  Statutes  at  Large,  51. 

*  II  Statutes  at  Large,  494. 

«  II  Statutes  at  Large,  199,  §§  3,  4. 

'  I  Colonial  Records,  103,  16,  7  mo.  1685. 


22S     EARLY  COURTS  OF  PENNSYLVANIA. 

It  will  be  noticed  that  the  widow  took  the  precaution 
to  have  the  verbal  order  confirmed.  Another  illustra- 
tion may  be  given  which  leaves  the  reader  in  some  doubt 
as  to  the  miracle  proposed  to  be  accompUshed  with  the 
fund : — 

"Att  a  Council  Held  att  Philad.  die  Lunae,  1st  July,  1700. 

Present : 

"WM.   PENN,   pror  and  Governor 

Edwd   Shippin,  Wm.  Clark,  Thomas  Storie. 

Rt.  Turner,  John  Moll, 

"Upon  reading  the  petion  of  Sarah  Gibbs,  widdow,  setting 
forth  yt  Her  Husband  Latelie  dyed.  Leaving  her  much  in  debt, 
&  the  charge  of  a  sucking  child,  &  having  nothing  wherwt  to 
pay  ye  sd  debts  but  ye  shell  of  a  smal  house,  unfinisht,  &  a 
Lott  valued  att  50i",  yrfor,  requesting  ye  Go^  &  Council  to 
allow,  permitt,  &  authorize  her  to  make  sale  yrof,  towards  ye 
defraying  of  sd  debts,  educaon  of  sd  infant  &  her  support, 
according  to  the  Laws  and  Customs  of  sd  province.  Wheron 
Rt.  turner  signified  yt  ye  sd  allegaons  wer  true,  ye  circumstances 
qrof  being  to  him  well  known. 

"Itt  was  yrfor  Ordered  yt  sd  Sarah  Gibbs  be  pmitted,  allowed  & 
authorized,  &  is  hereby  by  ye  Go'  &  Council  pmitted,  allowed  & 
authorized,  to  make  sale  &  conveyance  to  anie  pson  qtsoever, 
of  ye  sd  house  &  Lott,  wt  its  improvments  and  apptenances,  & 
to  ym  &  y  Heirs  &  assigns  for  ever,  towards  ye  defraying  her 
just  debts,  ye  educaon  &  maintainance  of  sd  infant  &  her  owne 
support,  according  to  ye  Laws  &  Customs  of  sd  province,  to 
Hold  to  ye  sd  pchasers  yrof  &  yf  heirs  &  assigns,  &  to  y^  use  & 
behoofe,  in  fee  simple  &  estate  of  inheritance  forever."* 

There  does  not  appear  to  have  been  any  express 
statutory  directions  as  to  the  distribution  of  decedents' 
estates  in  general  until  June  4,  1693,  when  at  the  stormy 
session  of  that  year  a  bill  was  passed  relating  to  the 
distribution  of  decedents'  estates,  the  order  of  payment 
of  debts  and  the  disposition  of  the  residue  of  real  and 


1  I  Colonial  Records,  552,  July  1,  1700. 


EARLY  COURTS  OF  PENNSYLVANIA.     229 

personal  estate,  all  of  which  distributions  "as  well  of  the 
Testate's  as  intestate's  estate  are  to  be  made  by  the 
Register  General  for  the  time  being,  within  twelve 
months  after  the  Decedent's  Death."-  The  distributees 
were  required  to  give  refunding  bonds  to  the  register 
general.  It  was  further  provided  that  all  executors 
and  guardians  of  persons  under  age  should  give  bond 
to  the  orphans'  court.  All  of  these  provisions  were  sub- 
stantially re-enacted  in  the  Acts  of  May  24,  1097,^  and 
of  November  27,  1700,^  except  that  in  the  latter  act  the 
distribution  was  to  be  made  by  the  "registers  of  the 
counties."  The  last  act  was  disapproved  by  the  queen. 
The  jurisdiction  of  the  orphans'  court,  in  matters  of 
accounts,  was  in  some  degree  widened  by  the  judiciary 
Act  of  October  28,  1701,*  an  act  which  we  have  already 
seen  failed  to  meet  the  approval  of  the  privy  council. 
By  this  act  the  orphans'  court  was  not  only  given  juris- 
diction over  all  executors,  administrators  and  trustees 
accountable  for  lands  or  chattels  belonging  to  orphans 
or  minors,  but  it  was  further  provided  that  those  who 
filed  inventories,  gave  bond  or  made  accounts  in  the 
orphans'  court  should  not  be  obliged  to  account  to  the 
register  general's  office.  By  the  Act  of  January  12, 
1705-6,^  relating  to  intestate  estates,  complete  jurisdic- 
tion over  the  settlement  of  administrators'  accounts 
and  the  distribution  of  the  surplus  after  payment  of  debts 
was  conferred  upon  the  orphans'  court.  By  this  statute, 
which  was  allowed  to  become  a  law,  the  orphans'  court 
may  be  said  to  have  finally  departed  from  the  limited 


'  Charter  and  Laws  of  Pennsylvania,  231;  I  Colonial  Records, 
390,  May  31,  1693. 

*  Charter  and  Laws  of  Pennsylvania,  261. 
» II  Statutes  at  Large,  31,  §  3. 

*  II  Statutes  at  Large,  148,  §  8. 
•*  II  Statutes  at  Large,  199. 


2;>0     EARLY  COURTS  OF  PENNSYLVANIA. 

scope   of  its   London  prototype  to  enter  upon  a  con- 
stantly widening  field  of  activities. 

The  act,  however,  which  is  the  principal  source  of 
orphans'  court  jurisdiction  is  that  of  March  27,  1712-3,* 
passed,  as  stated  in  the  preamble,  to  take  the  place  of 
the  prior  acts  repealed  by  the  queen.  It  is  too  long  to 
give  in  full,  but,  briefly  stated,  the  justices  of  the  court 
of  quarter  sessions  were  empowered  to  hold  a  court  of 
record  called  the  orphans'  court,  with  jurisdiction  over 
the  accounts  of  such  persons  who  as  guardians,  trustees, 
tutors,  executors  or  administrators  were  entrusted  with 
the  property,  real  or  personal,  of  orphans  or  persons 
under  age,  to  see  that  the  surety  for  such  persons  was 
sufficient,  to  revoke  their  letters,  if  necessary,  to  see 
that  funds  were  invested,  appoint  guardians  or  bind  the 
minors  out  as  apprentices,  and  upon  a  settlement  of  an 
account  to  require  a  proper  discharge  for  the  account- 
ant, "and  if  any  person  or  persons,  being  duly  sum- 
moned to  appear  in  any  of  the  said  orphans'  courts, 
ten  days  before  the  time  appointed  for  their  appearance, 
shall  make  default,  the  justices  may  send  their  attach- 
ments for  contempts,  and  may  force  obedience  to  their 
warrants,  sentences  and  orders  concerning  any  matter  or 
thing  cognizable  in  the  same  courts,  by  imprisonment  of 
body,  or  sequestration  of  lands  or  goods,  as  fully  as  any 
court  of  ecjuity  may  or  can  do.  Provided  always.  That 
if  any  person  or  persons  shall  be  aggrieved  with  any 
definitive  sentence  or  judgment  of  the  said  orphans' 
court,  it  shall  be  lawful  for  them  to  appeal  from  the 
same  to  the  supreme  court;  which  appeal,  upon  security 
given,  as  is  usual  in  such  cases,  shall  be  granted  accord- 
ingly." 

This  act,  w^ith  some  amendments,  remained  in  force 
until  suppHed  in   1832  by  the  act  drafted  by  commis- 

1  III  Statutes  at  Large,  14. 


EARLY  COURTS  OF  PENNSYLVANIA.     231 

sioners  to  revise  the  civil  code.  We  have  already  seen 
that  an  act  of  September  29,  1759,^  which  failed  of  ap- 
proval by  the  Crown, appointed  the  judges  of  the  common 
pleas  to  hold  the  orphans'  court.  This,  however,  was  a 
matter  of  form  rather  than  substance,  for  the  judges  of 
the  common  pleas  were  selected  from  the  general  com- 
mission of  the  peace  and  none,  at  this  period,  was  learned 
in  the  law.  The  dockets  of  the  orphans'  court  of  Phila- 
delphia County,  which  are  complete  from  1719,  show  a 
long  list  of  worthy  citizens  presiding  in  this  tribunal. 
The  court  did  not  have  any  special  president  but  certain 
justices  of  the  peace  to  whom  the  service  was  congenial 
usually  attended  its  sessions.  John  Hill  Martin  notes^ 
that  whenever  the  mayor  of  the  city  was  present  he 
always  presided,  and  on  all  other  occasions  the  order  of 
seniority  of  justices  was  rigidly  observed,  erasures  being 
made  in  the  minutes  to  correct  errors  in  this  respect. 

The  oldest  docket  in  the  Philadelphia  office  opens  the 
ninth  of  April,  1719,  with  the  following  justices  present: 
Jonathan  Dickinson,  Robert  Assheton  and  Clement 
Plumstead.  The  first  case  is  a  petition  for  the  appoint- 
ment of  a  guardian  and  these  cases  are  the  most  numer- 
ous in  the  early  records. 

There  are  also  many  petitions  for  the  sale  of  land  for 
the  payment  of  debts  or  to  support  minors,  to  partition 
real  estate,  to  compel  the  filing  of  accounts  and  for  the 
appointment  of  auditors.  At  the  court  held  Febru- 
ary 12,  1738,  there  is  a  petition  by  the  widow  and  execu- 
trix of  Abel  Cain  for  leave  to  sell  "a  negro  woman  Mumbo 
and  her  increase"  for  the  support  of  the  testator's  chil- 
dren. The  return  shows  that  forty  pounds  was  realized 
at  the  sale,  of  which,  fifteen  pounds  was  directed  to  be 
paid  to  the  widow,  to  reimburse  her  for  expenditures 


»  V  Statutes  at  Large,  462. 

2  Martin's  Bench  and  Bar  of  Philadelphia,  66. 


232     EARLY  COURTS  OF  PENNSYLVANIA. 

made,  fifteen  pounds  to  be  expended  in  purchasing  cloth- 
ing for  the  son  and  putting  him  out  as  an  apprentice,  and 
the  balance  was  directed  to  remain  in  court  until  further 
order.' 

The  proceedings  are  usually  by  petition  and  answer 
and  the  judgment  of  the  court  is  entered  in  the  form  of 
an  order.  In  1738  a  subpoena  was  issued  to  an  executor 
to  appear  and  exhibit  his  account,  and  on  his  failure  to 
do  so  an  attachment  was  awarded.^  But  ten  years  later 
the  citation  is  in  use.  Thus,  on  June  20,  174S,  on  peti- 
tion by  the  guardian  of  a  minor  and  heir  at  law  of  a 
decedent  averring  that  the  widow  and  administratrix 
had  married  again  and  was  wasting  the  estate,  a  citation 
was  directed  to  the  administratrix  and  her  husband, 
requiring  them  to  appear  and  render  an  account,  return- 
able the  tenth  day  of  July  next.^ 

The  most  important  audit  of  these  early  days  was  that 
of  the  accounts  of  the  trustees  for  the  sale  of  the  lands 
of  the  Society  of  Free  Traders,  which  by  an  Act  of 
Assembly  of  March  2,  1722-3,*  was  referred  to  this  court, 
which  was  also  directed  to  hear  and  pass  upon  all  claims 
for  a  share  in  the  funds.  This  society,  an  association  in 
the  nature  of  a  joint  stock  company,  which  had  pur- 
chased twenty  thousand  acres  of  land  from  Penn  in 
1681,  had  not  proved  a  success,  its  affairs  had  been 
neglected  and  at  the  instance  of  the  certificate  holders 
and  their  heirs  the  act  was  passed  under  which  its  busi- 
ness was  wound  up.  The  court  first  met  for  this  audit 
on  March  10,  1724,  and  the  meetings  continued  at  inter- 
vals for  a  number  of  years. 

It  is  now,  of  course,  well  settled  that  the  orphans' 
court  while  a  court  of  equity  with  respect  to  subjects 


1  Orphans'  Court  Docket  No.  2,  page  78. 

^  Orphans'  Court  Docket  No.  2,  pages  59,  93. 

*  Orphans'  Court  Docket  No.  3,  page  53. 

*  III  Statutes  at  Large,  345. 


EARLY  COURTS  OF  PENNSYLVANIA.     233 

within  its  jurisdiction,  has  no  general  chancery  powers, 
but  only  such  as  are  derived  from  statute  or  are  neces- 
sary to  make  its  statutory  powers  effective.^  In  1745 
there  is  recorded  a  curious  effort  to  extend  its  jurisdic- 
tion. William  Good,  by  his  guardian,  Ralph  Assheton, 
filed  a  petition  averring  that  petitioner  was  the  owner 
of  ten  acres  of  land  in  the  township  of  Passyunk  which 
had  "by  the  extraordinary  rise  of  the  price  of  lands 
thereabouts  become  of  considerable  value;"  that  one 
Joseph  Scull,  brickmaker,  taking  advantage  of  the  fact 
that  petitioner  was  a  minor,  had  entered  on  said 
land,  dug  pits  and  was  about  to  set  up  a  brick  yard  to 
the  damage  of  petitioner,  pretending  that  he  had  a 
lease  from  petitioner's  father,  although  that  lease  had 
expired  and  contained  no  clause  permitting  him  to  com- 
mit waste,  and  praying  that  the  said  Scull  might  be 
cited  to  appear  and  answer  the  complaint  and,  if  the 
facts  prove  true,  then  that  Scull  be  restrained  from 
committing  waste  or  that  petitioner  have  such  other 
relief  "as  is  agreeable  to  equity  and  good  conscience." 
Whereupon  it  was  ordered  that  the  said  Joseph  Scull 
be  served  with  a  copy  of  the  petition  and  cited  to  appear 
and  answer  the  same.^  The  answer  filed  July  29,  1745, 
averred  that  any  demand  William  Good  might  have  had 
against  the  respondent  for  waste,  damages  or  otherwise 
was  not  cognizable  in  this  court,  but  in  the  courts  of 
common  law  duly  constituted  and  settled  in  said  prov- 
ince, and  further  that  the  tract  referred  to  did  not 
belong  to  petitioner  but  to  his  mother,  who  had  leased 
it  to  respondent,  and  that  the  present  right  and  title 
to  the  same  was  not  to  be  impeached,  tried  and  deter- 
mined in  this  court  but  in  the  ordinary  course  of  law. 

*  Brinker  v.  Brinker,  7  Pennsylvania  Reports,  53  (1847); 
Steffy's  Appeal,  76  Pennsylvania  Reports,  94  (1874);  Kidder's 
Estate,  1  Kulp's  Reports,  412  (1875). 

*  Orphans'  Court  Docket  No.  2,  page  176. 


234     EARLY  COURTS  OF  PENNSYLVANIA. 

There  is  no  entry  of  a  decree,  and  perhaps  the  answer 
was  regarded  by  the  parties  as  conclusive,  inasmuch  as  a 
question  of  title  was  raised.  After  the  closing  of  the 
governor's  court  of  chancery  there  was  no  court  with 
jurisdiction  to  enjoin  the  commission  of  waste,  and  the 
attempt  to  persuade  the  orphans  to  exercise  that  power 
indicates  the  need  of  such  a  remedy,  at  least  to  the 
mind  of  the  guardian,  who  was  himself  a  justice,  and 
to  that  of  the  presiding  judge,  William  Allen,  afterwards 
chief  justice  of  the  province.* 

The  constitution  of  177G  provided  that  the  orphans' 
court  should  be  held  quarterly  in  each  city  and  county, 
while  the  Act  of  January  28,  1777,'  passed  for  the  pur- 
pose of  putting  into  effect  so  much  of  the  provincial 
law  as  was  necessary  in  the  commonwealth,  conferred 
upon  these  courts  the  powers  and  jurisdiction  which 
they  had  theretofore  exercised.  By  the  Act  of  March  14, 
1777,^  registers  of  wills  were  directed  to  be  appointed  for 
each  county  by  the  general  assembly  and  the  office  of 
register  general  was  abolished.  The  constitution  of 
1790  vested  the  appointment  of  registers  in  the  governor, 
but  the  office  was  made  elective  by  the  amended  consti- 
tution of  1838.^ 

By  the  constitution  of  1790^  it  was  provided  that  the 
judges  of  the  court  of  common  pleas  of  each  county. 


1  By  the  Act  of  May  19,  1874,  P.  L.  206,  §  7,  the  orphans'  court 
has  power  to  prevent  by  order,  in  the  nature  of  an  injunction, 
acts  contrary  to  law  or  equity  prejudicial  to  the  property  over 
which  they  have  jurisdiction.  See  Pepper  and  Lewis's  Digest 
of  Decisions,  Vol.  15,  col.  24472. 

^  IX  Statutes  at  Large,  29;  1  Smith's  Laws  of  Pennsylvania, 
429. 

^  IX  Statutes  at  Large,  68;  1  Smith's  Laws  of  Pennsylvania, 
443. 

*  Article  V,  §  11,  Constitution  of  1790;  Article  VI,  §  3  ,  Con- 
stitution of  1838. 

*  Article  V,  §  7,  Constitution  of  1790;  3  Smith's  Laws  of  Penn- 
sylvania, page  xxxix. 


EARLY  COURTS  OF  PENNSYLVANIA.     235 

any  two  of  whom  should  be  a  quorum,  should  compose 
the  orphans'  court  thereof,  and  the  register  of  wills 
together  with  the  said  judges  or  any  two  of  them  should 
compose  the  register's  court.  By  the  Act  of  April  13, 
1791,^  the  courts  were  established  in  conformity  with 
the  constitution. 

The  orphans'  court,  although  called  a  court  of  record 
in  the  Act  of  1713,  was  not,  at  first,  accorded  that  dig- 
nity. In  1786  it  was  held  that  the  settlement  of  an 
executor's  account  was  not  conclusive^  and  this  decision 
was  followed  in  1818.^  In  other  cases  there  was  shown 
a  tendency  to  discredit  proceedings  before  these  tribunals 
which,  perhaps  on  this  very  account,  had  become  loose 
and  irregular.  Judge  Duncan  in  Mc Pherson  v.  Cunliff^ 
gives  a  melancholy  picture  of  the  careless  practice;  the 
orders  written  on  loose  scraps  of  paper  and  deposited 
in  untitled  pigeon  holes,  or  packed  up  as  useless  lumber 
in  old  trunks.  Nevertheless,  his  opinion  in  that  case, 
vindicating  the  authority  of  decrees  of  orphans'  courts, 
checked  their  decline,  while  his  criticism,  added  to  com- 
plaints from  the  bench  and  bar,  moved  the  legislature 
in  the  resolution  for  the  revision  of  the  civil  code  passed 
March  23,  1830,  to  require  the  commissioners  "to  revise 
the  several  statutes  relative  to  the  settlement  of  accounts 
before  registers  and  proceedings  in  the  orphans'  courts, 
as  soon  as  conveniently  may  be,  and  report  the  same  for 
the  determination  of  the  general  assembly  at  their  next 
session."  Accordingly  the  commissioners  made  their 
first  report  to  the  legislature  on  January  31,  1831,  and 


1  3  Smith's  Laws  of  Pennsylvania,  2S. 

^  Marriotv.  Davey,  1  Dallas's  Report,  164  (1786). 

3  Kohr  V.  Fedderhaff,  4  Sergeant  &  Rawle's  Reports,  248 
(1818). 

Ml  Sergeant  &  Rawle's  Reports,  422  (1824).  So  far  as 
Philadelphia  County  is  concerned  the  orphans'  court  records  are 
in  a  better  state  of  preservation  than  those  of  the  other  courts. 


236     EARLY  COURTS  OF  PENNSYLVANIA. 

presented  two  bills,  one  relating  to  registers  and  regis- 
ters' courts  and  the  other  relating  to  orphans'  courts. 
Upon  the  latter  bill  the  commissioners  observed : — 

"The  bill  relating  to  the  Orphans'  Court  has  occupied  a 
large  share  of  our  time  and  reflections.  The  peculiar  structure 
of  that  court,  its  extensive  but  ill-defined  sphere  of  jurisdiction, 
the  magnitude  of  the  interest  upon  which  it  operates,  the 
uncertainty  of  the  code  of  law  by  which  it  is  regulated,  and  its 
equally  uncertain  and  insufficient  practice  and  process,  serve 
to  surround  with  difficulties  every  attempt  to  frame  a  regular 
system  for  it:  So  convinced  are  we  of  the  arduousness  of  the 
task  of  compiling  a  complete  system,  which  shall  embrace 
the  constitution,  jurisdiction,  powers,  and  practice,  of  this 
court,  that  had  it  not  been  for  the  express  directions  of  the 
legislature  to  report  upon  it  at  the  present  session,  we  should 
probably  have  reserved  this  subject  to  the  last,  and  given  it 
the  utmost  deliberation  that  our  limits  allowed.  Of  the  necessity 
however  of  an  early  as  well  as  thorough  examination  and  revision 
of  the  acts  of  assembly  relating  to  this  tribunal,  we  are  fully 
convinced."' 

The  bills  recommended  by  the  commissioners  were 
enacted  into  laws  at  the  session  of  1832,  that  relating 
to  registers  and  registers'  courts  being  approved  March 
15,  1832,^  and  that  relating  to  orphans'  courts  on 
March  29,  1832. ^ 

Under  these  acts  the  register  was  given  jurisdiction 
within  the  county  for  which  he  was  appointed,  "of  the 
probate  of  wills  and  testaments,  of  the  granting  of 
letters  testamentary,  and  of  administration,  of  the 
passing  and  filing  of  the  accounts  of  executors,  adminis- 
trators and  guardians,  and  of  any  other  matter  whereof 
jurisdiction  may  be  at  any  time  expressly  annexed  to  his 
office." 


1  First  Report  of  the  Commissioners  to  Revise  the  Civil  Code 
(1831). 

2  P.  L.  135. 

3  P.  L.  190. 


EARLY  COURTS  OF  PENNSYLVANIA.     237 

When  a  caveat  was  filed,  objection  made  to  the 
granting  of  letters  of  administration,  or  when  any  dis- 
putable or  difficult  matter  came  into  controversy,  the 
register,  at  the  request  of  any  person  interested,  was 
required  to  call  a  register's  court  for  the  decision  thereof. 
So  also,  an  appeal  might  be  taken  to  the  register's  court 
from  all  the  judicial  acts  and  decisions  of  the  register. 
The  register's  court  comprised  the  register  of  wills  and 
the  judges  of  the  court  of  common  pleas  of  the  county 
or  any  two  of  said  judges. 

After  the  register  had  allowed  and  filed  any  account  in 
his  office,  he  was  required  to  prepare  and  present  a 
certified  copy  thereof  to  the  orphans'  court  at  its  next 
stated  meeting  and  give  notice  by  public  advertisement 
that  said  accounts  would  be  presented  to  the  orphans' 
court  for  confirmation. 

The  judges  of  the  court  of  common  pleas  of  each 
county  or  any  two  of  them  composed  the  orphans'  court, 
which  was  declared  a  court  of  record,  the  decrees  of 
which  were  not  to  be  reversed  or  avoided  collaterally  in 
any  other  court.  The  jurisdiction  of  the  court  was 
summarized  in  the  act  as  follows : — 

"The  jurisdiction  of  the  several  Orphans'  Courts  of  this 
Commonwealth  shall  extend  to  and  embrace  the  appointment, 
control,  removal  and  discharge  of  guardians,  the  settlement  of 
their  accounts,  the  removal  and  discharge  of  executors  and 
administrators  deriving  their  authority  from  the  register  of 
the  respective  county,  the  settlement  of  the  accounts  of  such 
executors  and  administrators  and  the  distribution  of  the  assets 
or  surplusage  of  the  estates  of  decedents,  after  such  settlements 
among  creditors  or  others  interested  in  the  sale  or  partition  of 
the  real  estate  of  decedents  among  the  heirs,  and  generally 
to  all  cases  within  their  respective  counties,  wherein  executors, 
administrators,  guardians  or  trustees  are  or  may  be  possessed 
of  or  undertake  the  care  and  management  of,  or  are  in  any  way 
accountable  for  any  real  or  personal  estate  of  a  decedent,  and 
such  jurisdiction  shall  be  exercised  in  the  manner  hereinafter 
provided."* 

'  Section  4  of  the  Act  of  March  29,  1832,  P.  L.  190. 


238     EARLY  COURTS  OF  PENNSYLVANIA. 

No  account  of  an  executor,  administrator  or  guardian 
was  to  be  confirmed  and  allowed  by  the  court  unless 
advertised  by  the  register  of  wills  as  provided  in  the 
prior  act  and  all  accounts,  except  partial  accounts  by 
guardians,  were  to  be  examined  by  the  court  or  referred 
to  auditors,  unless  otherwise  agreed  by  all  parties  in 
interest.*  These  provisions  were  adopted  to  compel  a 
more  thorough  audit  of  accounts.  Under  the  prior 
practice  the  settlement  of  accounts  in  the  register's 
office  was  generally  a  perfunctory  matter  and  no  more 
than  a  mere  vouching  of  the  items  of  the  account,  while 
the  confirmation  in  the  orphans'  court  was  largely  a 
matter  of  form.  A  reform  in  these  matters  was  abso- 
lutely necessary  if  the  decrees  of  the  orphans'  court 
were  to  be  made  conclusive.  Finally  the  practice  and 
process  of  the  orphans'  court  were  defined  and  strength- 
ened.    Writing  in  1847,  Mr.  Hood  observed: — 

"The  orphans'  court,  as  at  present  constituted,  is  a  court 
of  a  peculiar  nature  both  as  respects  its  jurisdiction,  powers, 
and  the  forms  of  its  proceedings,  partaking  of  the  characters 
of  a  court  of  common  law,  a  court  of  equity,  and  an  ecclesiastical 
court.  The  process  of  the  orphans'  court  would  seem,  in  some 
respects,  to  resemble  that  of  the  English  ecclesiastical  courts, 
whose  proceedings  are  regulated  according  to  the  practice  of  the 
civil  and  canon  law;  or  rather  according  to  a  mixture  of  both 
collected  and  new-modelled  by  their  own  particular  usages  and 
the  interpretation  of  the  courts  of  common  law.  It  was  this 
establishment  of  the  civil  law  process  in  the  ecclesiastical  courts 
that  made  a  coalition  impracticable  between  them  and  the 
national  tribunals  of  England.  The  act  of  1832  has  remodelled 
the  forms  of  proceeding  in  the  orphans'  court,  making  them 
approximate  more  nearly  to  the  common  law.  Hence,  in  the 
orphans'  court  practice,  are  found  the  motion,  rule,  fieri  facias, 
and  subpoena  of  the  common  law  courts,  the  petition  of  chancery, 
and  the  citation  of  doctors  commons;  and  mingled  with  them, 
the  order,  decree,  and  sequestration  derived  through  these  equity 
and  ecclesiastical  tribunals,  from  the  civil  and  canon  laws. 
In  one  respect  the  orphans'  court  may  be  said  to  be  of  a  higher 
nature  than  the  court  of  chancery  and  the  ecclesiastical  courts  of 


EARLY  COURTS  OF  PEXXSYLVANIA.  239 

England:  for  the  court  of  chancery,  wnen  proceeding  by 
subpoena,  is  not  a  court  of  record,  nor  are  the  ecclesiastical 
tribunals,  courts  of  record."' 

Under  the  Act  of  1832,  and  some  additional  acts 
relating  to  decedents'  estates  subsequently  passed  on 
the  recommendation  of  the  commissioners,  the  orphans' 
courts  reached  their  full  dignity  as  courts  of  record  and 
have  justified  their  creation  by  a  long  career  of  useful- 
ness. The  confidence  of  the  community  has  been 
further  marked  by  the  extension  of  their  jurisdiction  in 
numerous  cases  as,  for  example,  under  the  Price  Act.^ 
To  fully  describe  the  powers  of  the  court  would  exceed 
the  limits  of  this  chapter  and  indeed  open  up  the  whole 
subject  of  orphans'  court  practice,  a  matter  that  has 
been  thoroughly  discussed  in  several  text  books.  ^  It  is 
necessary,  however,  to  refer  to  certain  changes  brought 
about  by  the  constitution  of  1874  which  abolished  the 
register's  court  and  conferred  its  jurisdiction  on  the 
orphans'  court,  provided  for  the  establishment  of  sepa- 
rate orphans'  courts  in  counties  having  a  population 
exceeding  one  hundred  and  fifty  thousand,  and  directed 
that  all  accounts  filed  with  the  register  of  wills,  as  clerk 
of  a  separate  orphans'  court,  should  be  audited  by  the 
court  without  expense  to  the  parties,  unless  the  parties 
themselves  nominated  an  auditor.* 

These  changes  have  proved  most  beneficial.  The 
registers'  court  was  unnecessary  and  was  wisely  abolished, 
while  the  creation  of  separate  orphans'  courts  in  the 
larger  communities  has  been  particularly  advantageous 
in  furnishing  to  the  judiciary  of  the  state  a  corps  of 

1  Hood  on  Executors,  103. 

2  Act  of  April  18,  1853,  P.  L.  503. 

*  Scott  on  the  Intestate  System  of  Pennsylvania,  Rhone's 
Orphans'  Court  Practice,  Brewster's  Orphans'  Court  Practice. 
Pepper  and  Lewis's  Digest  of  Decisions,  Vol.  14.  col.  24234. 

■•  Article  V,  §  22,  Constitution  of  1874;  see  appendix. 


240  EARLY  COURTS  OF  PENNSYLVANIA. 

experts,  specially  trained  in  the  handling  of  those 
diffictdt  and  intricate  problems  arising  out  of  the  devo- 
lution of  property  by  death.  The  name  of  the  court 
today  indicates  but  a  small  part  of  its  functions,  but  is 
an  historic  illustration  of  the  way  in  which  great  insti- 
tutions sometimes  grow  from  small  beginnings. 


CHAPTER  VI. 

In  tracing  the  early  history  of  the  judicial  proceed- 
ings by  which  roads  and  streets  are  laid  out  and  opened 
in  Pennsylvania,  the  common  law  of  England  lends 
little  assistance.  The  physical  conditions  in  colony  and 
mother  country  were  so  radically  different  as  to  afford 
little  analogy  in  matters  of  local  or  municipal  regula- 
tion. In  England,  at  the  time  of  the  settlement  of  the 
province,  the  country  was  traversed  in  every  direction, 
from  town  to  town  and  village  to  village,  by  ways  so 
well  defined  by  custom  and  so  well  established  by  repu- 
tation, that  a  complaint  of  want  of  thoroughfare  was 
uncommon.*  In  Pennsylvania,  as  in  the  other  colonies, 
the  opening  of  roads  for  public  travel  and  for  the  trans- 
portation of  commodities  was  an  immediate  and  press- 
ing economic  necessity. 

The  science  of  road  construction  was  still  in  its  infancy 
and  throughout  England  roads  were,  during  the  seven- 
teenth and  eighteenth  centuries,  in  a  deplorable  condi- 
tion. In  the  first  year  of  the  reign  of  Queen  Anne, 
Charles  III  of  Spain  visited  England.  His  experiences 
on  the  road  between  Portsmouth  and  Petworth  in 
Sussex  are  thus  related  by  one  of  his  suite : — 

"We  set  out  at  six  in  the  morning  by  torchlight  to  go  to 
Petworth  and  did  not  get  out  of  the  coaches  (save  only  w  hen  we 
were  overturned  or  stuck  fast  in  the  mire)  till  we  arrived  at 
our  journey's  end.  'Twas  a  hard  service  for  the  Prince  to  sit 
fourteen  hours  in  the  coach  that  day  without  eating  anything, 
and  passing  through  the  worst  ways  I  ever  saw  in  my  life.  We 
were  thrown  but  once,  indeed,  in  going,  but  our  coach  (which 
was  the  leading  one)  and  his  Highness's  body  coach  would  have 
suffered  very  much  if  the  nimble  boors  of  Sussex  had  not 
frequently  poised  it  or  supported  it  with  their  shoulders  from 

*  Woolwych  on  Ways,  6. 


242     EARLY  COURTS  OF  PENNSYLVANIA. 

Godalming  almost  to  Petworth;  and  the  nearer  we  approached 
the  Duke  of  Somerset's  house  the  more  inaccessible  it  seemed 
to  be.  The  last  nine  miles  of  the  way  cost  us  six  hours  to  conquer 
them :  and  indeed  we  had  never  done  it  if  our  good  master  had 
not  several  times  lent  us  a  pair  of  horses  out  of  his  own  coaching, 
whereby  we  were  enabled  to  trace  out  the  road  for  him."' 

So  Defoe,  in  a  letter  written  in  1722,  remarks: — 

"Going  to  church  at  a  country  village  not  far  from  Lewes, 
I  saw  an  ancient  lady — and  a  lady  of  very  good  quality  I  assure 
you — drawn  in  her  coach  to  church  with  six  oxen;  nor  was  it 
done  in  frolic  or  humour,  but  mere  necessity,  the  way  being  so 
stiff  and  deep  that  no  horses  could  go  in  it."* 

Few  roads  were  more  than  bridle  paths  and  a  journey 
for  any  distance  from  home  was  a  serious  undertaking, 
that  commonly  meant  the  inditing  of  a  last  will  and 
testament  and  the  settlement  of  one's  worldly  affairs. 
A  country  gentleman  when  traveling  alone  at  this  time 
usually  adopted  the  plan  called  riding  post;  that  is, 
he  hired  at  each  stage  two  horses  and  a  postboy,  who 
carried  the  portmanteau  behind  him  and  rode  back 
when  fresh  horses  were  required. 

With  the  physical  conditions  thus,  it  is  not  surprising 
that  the  road  law  of  the  country  was  that  of  the  feudal 
period,  except  as  affected  by  special  turnpike  acts. 
Three  kinds  of  ways  were  recognized — footways,  horse- 
ways and  cartways.     In  the  language  of  Coke : — 

"There  be  three  kinds  of  wayes  whereof  you  shall  reade 
in  our  ancient  bookes.  First  a  footway,  which  is  called  iter, 
quod  est  jus  eundi  vel  ambulandi  hominis;  and  this  is  the  first 
way.  The  second  is  a  footway  and  horseway,  which  is  called 
actus  ab  agendo;  and  this  vulgarly  is  called  packe  and  prime  way 
because  it  is  both  a  footway,  which  was  the  first  or  prime  way 
and  a  packe  or  drift  way  also.  The  third  is  via  or  aditus  which 
contains  the  other  two  and  also  a  cartway  etc.  for  this  is  jus 


1  England  in  the  Eighteenth  Century,  Sidney,  Vol.  II,  3. 

2  England  in  the  Eighteenth  Century,  Sidney,  Vol.  II,  6. 


EARLY  COURTS  OF  PENNSYLVANIA.     243 

eundi,  vehendi  et  vehiculum  et  jumentum  ducendi:  and 
this  is  two  fold,  viz:  regia  via,  the  king's  highway  for  all  men, 
et  communis  strata,  belonging  to  a  city  or  town  or  between 
neighbors  and  neighbors.  This  is  called  in  our  bookes  chimin, 
being  a  French  word  for  a  way,  whereof  cometh  chiminage, 
chiminagium  or  chimmagium,  which  signifieth  a  toll  due  by 
custome  for  having  a  way  through  a  forest,  and  in  ancient 
records  it  is  sometimes  called  pedagium."* 

Another  classification  divided  ways  into :  King's  high- 
ways, that  is,  pubHc  passages  for  the  king  and  his  sub- 
jects ;  common  ways  or  such  as  led  from  a  village  to  the 
parish  church  or  common  fields,  and  were  for  the  bene- 
fit of  the  particular  inhabitants  of  the  locality;  and 
private  ways,  where  particular  individuals  had  a  right 
of  passage  through  certain  land. 

The  right  to  a  public  highway  usually  rested  on  an 
act  of  parliament,  express  grant,  dedication,  or  was 
claimed  by  prescription,  and,  as  already  stated,  com- 
plaints of  want  of  thoroughfare  seldom  arose.  If  it 
became  necessary  to  deviate  from  an  existing  way  the 
nev/  route  did  not  become  a  public  highway  without  a 
writ  of  ad  quod  damnum  and  inquisition.  This  was  an 
ancient  writ  issued  out  of  and  returnable  into  chancery 
through  the  petty-bag  office  and  was  directed  to  the 
escheator  or  sheriff,  who  was  commanded  to  hold  an 
inquisition  to  determine  what  damage  would  result  to 
the  king  or  his  subjects  from  the  grant  so  that  compen- 
sation could  be  made  a  condition  thereof.-  Without 
this  writ  the  public  could  not  justify  going  over  a  new 
way,  as  a  common  highway,  but  were  obliged  to  show 
their  excuse  specially.^  If  the  purpose  was  to  change 
an  old  way  or  alter  its  condition,  the  new  way,  or  way 
so  altered,  was  required  to  be  as  beneficial  as  the  old 


»  Coke  on  Littleton,  56  A. 

*  Fitzherbert's  Natura  Brevium,  226. 

3  King  V.  Warde,  Croke's  Reports  (Charles  I),  226  (1633). 


244  EARLY  COURTS  OF  PENNSYLVANIA. 

one.*  "These  inquests  of  ofifice,"  says  Blackstone, 
speaking  generally  of  sheriffs'  and  coroners'  inquisitions, 
"were  devised  by  law,  as  an  authentic  means  to  give  the 
king  his  right  by  solemn  matter  of  record  without  which 
he,  in  general,  can  neither  take  nor  part  from  anything. 
For  it  is  of  the  liberties  of  England  and  greatly  for 
the  safety  of  the  subject,  that  the  king  may  not  enter 
upon  and  seize  any  man's  possession  upon  bare  surmises 
without  the  intervention  of  a  jury."^ 

The  obscurity  of  the  practice  and  infrequency  of 
reported  cases  shows  that  ad  quod  damnum  proceedings 
never  played  an  important  part  in  highway  law.  The 
writ  contained  great  possibilities,  and,  with  a  simplified 
procedure,  might  have  become  a  useful  vehicle  for  ac- 
commodating the  conflicting  interests  of  the  public  and 
the  land  owner,  had  road  matters  been  of  importance  in 
the  flourishing  days  of  petty-bag  jurisdiction.  But  in 
those  times  the  ancient  ways  were  sufficient  for  the 
needs  of  the  public,  and  where  new  roads  were  formally 
opened,  they  were  usually  either  dedicated  by  the  land 
owner  or  laid  out  over  unimproved  lands  without  com- 
pensation. When  the  pressure  for  highway  improve- 
ments became  greater  a  statutory  proceeding  more 
convenient  and  inexpensive  was  substituted  for  the 
ancient  writ,  preserving,  however,  the  spirit  and  sub- 
stance of  the  earlier  procedure.^  In  some  of  the  Ameri- 
can states,  notably  in  Virginia  and  Kentucky,  the  writ 
ad  quod  damnum  was  introduced  and  applied  in  pro- 
ceedings for  the  erection  of  mill  dams  on  streams,  and 


1  Ex  parte  Armitage,  Ambler's  Reports,  294  (1755). 

2  III  Blackstone's  Commentaries,  259;  Bonaparte  v.  Camden 
and  Atlantic  Railroad  Co.,  Baldwin's  Reports  (U.  S.),  205  (1830) 
at  page  221. 

*  13  George  III,  chapter  78,  §  19;  Davison  v.  Gill,  1  East's  Re- 
ports, 64  (1800). 


EARLY  COURTS  OF  PENNSYLVANIA.     245 

extended  to  other  matters  involving  injury  to  and 
appropriation  of  private  property.* 

It  was  about  the  time  of  the  settlement  of  the  colonies 
that  eminent  domain  as  a  distinct  branch  of  govern- 
mental power  began  to  be  discussed,  although  it  had 
long  existed  as  a  necessary  attribute  of  sovereignty. 
Grotius,  in  1625,  first  used  and  apparently  originated 
the  phrase  which,  although  open  to  criticism,  in  so  far 
as  it  implies  that  the  basis  of  the  power  is  an  ultimate 
ownership  in  the  state  of  all  property,  has  been  univer- 
sally adopted  as  defining  the  power  inherent  in  a  sov- 
ereign state  to  take  or  authorize  the  taking  of  private 
property  for  public  use.^  But  in  the  seventeenth  and 
eighteenth  centuries  the  practical  application  of  the 
principle  and  its  relation  to  the  constitutional  restraints 
on  state  action  had  not  been  worked  out.^ 

The  period  of  Dutch  supremacy  was  not  marked  by 
any  special  activity  in  road  improvements.  The  colon- 
ists on  both  the  North  and  South  Rivers  were  scattered 
in  villages  along  the  banks  and  transportation  was 
usually  by  water.  The  laying  out  of  such  highways  as 
were  needv^d  came  under  the  jurisdiction  of  the  schout 
and  schepens,  while  the  streets  of  the  capital  were 
under  the  immediate  supervision  of  the  chief  officials.* 
Thus  an  ordinance  of  the  director  and  council  of  New 
Amsterdam  of  February  25,  1656,  approves  a  survey  of 


'  Wroe  V.  Harris,  2  Washington's  Reports  (Va.),  126  (1795); 
Gay  V.  Caldwell,  Hardin's  Reports  (Ky.),  63,  (1806);  Mairs  v. 
Gallahue,  9  Grattan's  Reports  (Va.),  94  (1852);  Tracy  v.  Eliza- 
bethtown,  L.  &  B.  S.  Railroad  Co.,  78  Kentucky  Reports,  309 
(1880);  Schuylkill  &  S.  N.  Co.  v.  Decker,  2  Watt's  Reports,  343, 
(1834). 

^  Grotius,  De  Jure  Belli  et  Pacis,  Lib.  Ill,  chapter  2U,  §  7. 
'  NichoUs  on  Eminent  Domain,  7. 

■'  II  New  York  Colonial  Documents,  621;  O'Callaghan's  Laws 
and  Ordinances  of  New  Netherlands,  478. 


246     EARLY  COURTS  OF  PENNSYLVANIA. 

the  streets  of  the  city  and  refers  the  execution  to  the 
burgomasters,  who  are  to  give  notice  to  all  persons,  who 
may  be  damaged  by  the  survey,  to  furnish  a  statement 
of  their  damages,  and  if  an  agreement  cannot  be  reached, 
the  matter  is  to  be  referred  to  two  or  three  disinterested 
persons  who  are  to  appraise  the  lots.*  Various  regula- 
tions were  adopted  as  to  the  use  of  the  village  streets, 
one  of  which  may  be  quoted  at  length : — 

"Ordinance  of  the  Vice  Director  and  Commisaries  of  Fort 
Orange  Passed  10  December  1659.  The  Worshipful  Commissary 
and  Commissionaries  of  Fort  Orange  and  Village  of  Beverswyck, 
having  heard  divers  complaints  from  the  Burghers  of  this  place, 
against  playing  at  Golf  along  the  streets,  which  causes  great 
damage  to  the  windows  of  the  Houses,  and  exposes  people  to 
danger  of  being  wounded,  and  is  contrary  to  the  freedom  of  the 
public  streets;  therefore  their  worships,  wishing  to  prevent 
the  same,  forbid  all  persons  playing  Golf  in  the  streets,  on 
pain  of  forfeiting  fl.  25  for  each  person  who  shall  be  found 
doing  so."^ 

That  some  of  the  good  people  of  Albany  were  devoting 
their  time^to  golf  at  this  period,  is  more  surprising  than 
that  their  fellow-townsmen  objected  to  the  use  of  the 
streets  as  links. 

Upon  the  conquest  of  the  New  Netherlands  by  the 
English  the  matter  of  highway  regulation  seems  to  have 
been  neglected.  There  is  no  mention  of  the  subject  in 
the  Duke  of  York's  Laws,  and  this  is  the  more  surprising 
in  view  of  the  fact  that  they  were  drawn  largely  from 
New  England  sources  where  the  subject  of  highways  had 
received  early  attention.  By  a  law  of  the  colony  of 
Massachusetts  passed  in  1639  highways  were  to  be  laid 
out  on  complaint  to  the  county  court,  which  was  directed 
to  appoint  "two  or  three  men  of  each  next  town  whose 

'  O'Callaghan's  Laws  and  Ordinances  of  New  Netherlands,  219. 
2  O'Callaghan's  Laws  and  Ordinances  of  New  Netherlands,  367. 


EARLY  COURTS  OF  PENNSYLVANIA.     247 

inhabitants  had  most  occasion  thereof,"  and  these, 
upon  view,  were  to  lay  out  such  highway  according  to 
order  and  make  return  to  the  next  court,  compensation 
to  be  paid  to  any  man  damaged  in  his  improved  ground 
by  estimation  of  those  who  laid  out  the  same.  If  the 
viewers  disagreed  or  the  person  was  dissatisfied  with  the 
acts  of  the  viewers,  the  matter  was  to  be  referred  to  the 
county  court, ^ — a  simple  and  effective  proceeding,  and 
hard  to  improve  upon,  as  long  as  the  laying  out  of  roads 
was  regarded  as  a  matter  of  local  government. 

In  the  settlements  on  the  Delaware  the  opening  and 
repair  of  roads  were  matters  within  the  jurisdiction  of 
the  court  of  sessions.  Overseers  of  highways  were 
appointed  who  were  empowered  to  call  upon  the  inhabit- 
ants for  assistance  in  the  construction  and  repair  of 
highways  and  bridges,  and  persons  refusing  to  work  on 
the  roads  were  fined  by  the  courts.^  The  following  entry 
appears  on  the  minutes  of  the  court  held  at  New  Castle 
June  15,  1678:— 

"It  being  Represented  to  the  court  y*  there  is  need  of  a 
highway  to  come  from  Jan  Staalcops  Round  Christina  to  this 
Towne  of  New  Castle,  The  court  therefore  ordered,  that  all  the 
Inhabitants  dwelHng  on  the  North  syde  of  Christina,  from 
brandewyn  Creeke  to  the  place  or  plantation  of  John  Ogle,  Doe 
with  all  Convenient  speede  make  and  Cleare  a  good  and  passable 
Highway  from  ye  sd  Staalcops  house  Round  Christina  Creeke  to 
this  Towne  of  New  Castle,  and  doe  appoint  for  overseer  thereof 
Mr.  Abraham  Man  who  is  desired  to  see  the  worke  Effectually 
done."* 

At  a  court  held  December  3,  1679,  the  inhabitants 
were  divided  into  companies  under  designated  overseers 

'  Laws  of  Massachusetts  Colony  (1672),  64;  compare  Laws  of 
Colony  of  New  Plymouth  (Edition  of  1836),  64. 

2  Records  of  Court  at  Upland,  118,  192. 

3  Records  of  the  Court  of  New  Ca.stle,  288. 


248     EARLY  COURTS  OF  PENNSYLVANIA. 

and  charged  with  the  care  of  the  highways  in  their 
respective  districts.     It  was  also  ordered  that — 

"Whereas  for  ye  Common  Good  of  the  Country  itt  is  found 
necessary  that  y^  highwayes  from  place  to  place  bee  annually 
made  good  &  cleared  Itt  is  therefore  resolved  vizt  That  Every 
respective  overseer  take  care  that  betweene  Every  decem  & 
March  his  part  of  y^  highway  bee  made  good  &  cleared,  upon  ye 
penalty  &  forfeiture  of  1000  lb.  of  tobb  if  proved  to  be  ye  fault 
of  ye  overzeer  and  if  any  Inhabitant  resorting  under  the  company 
of  any  overseer  shall  refuse  upon  due  notice  to  worke  att  ye 
highway  till  it  be  finisht  hee  to  forfeit  for  Each  such  neglect 
400  lb.  of  tobacco.  The  highway  to  be  Cleared  as  followeth 
vizt  The  way  to  bee  made  cleare  of  standing  &  Lying  trees  at 
Least  10  foot  broad  all  stumpes  &  shrubs  to  bee  close  cutt  by  ye 
ground,  the  trees  markt  yearly  on  boath  sydes,  sufficient  bridges 
to  be  made  and  kept  over  all  marshy  swampy  &  difficult  dirty 
places  &  what  ever  else  shall  be  tougt  more  necessary  in  and 
about  ye  highwayes  aforesd."' 

William  Penn  on  receiving  his  grant  of  the  province 
of  Pennsylvania,  provided  in  his  frame  of  government 
that  the  governor  and  provincial  council  should  "at  all 
times  settle  and  order  the  situation  of  all  cities,  ports 
and  market  towns  in  every  county,  modeling  therein  all 
public  buildings,  streets  and  market  places,"  and  should 
"appoint  all  necessary  roads  and  highways  in  the 
province."^ 

In  the  instrument  executed  by  Penn  July  11,  1681, 
known  as  "the  conditions  and  concessions  to  the  adven- 
turers and  purchasers,"  it  was  agreed  that — 

"Great  roads  from  City  to  City  not  to  contain  less  than 
forty  feet  in  breadth  shall  be  first  laid  out  and  declared  to 
be  for  highways  before  the  Dividend  of  acres  be  laid  out  for 
the  purchaser  and  the  like  observation  to  be  had  for  the  streets 
in   the   towns  and  Cities  that  there  may  be   convenient  roads 

'  Records  of  the  Court  of  New  Castle,  364,  also  pages  143, 
169,  197. 

2  Charter  and  Laws  of  Pennsylvania,  95. 


EARLY  COURTS  OF  PENNSYLVANIA.     249 

and  streets  preserved  not  to  be  encroached  upon  by  any  planter 
or  builder  that  none  may  build  irregularly  to  the  damage  of 
another."' 

"On  the  arrival  of  the  adventurers  in  this  country," 
says  Chief  Justice  Shippen,  "it  was  found  very  prac- 
ticable to  lay  out  streets  in  one  great  city,  which  was 
accordingly  done,  but  quite  impracticable  to  lay  out 
the  great  roads  or  highways  from  city  to  city,  as  only 
one  city  was  then  contemplated.  But  as  such  great 
roads  were  to  be  laid  out  over  the  land  of  the  pro- 
prietor alone  and  the  purchasers  were  not  to  contribute, 
it  was  at  length  agreed  and  sanctioned  in  lieu  of  the 
impracticable  plan  settled  in  England,  there  should  be 
an  additional  quantity  of  land  granted  to  each  pur- 
chaser without  price  or  rent,  to  enable  him  to  con- 
tribute without  loss  to  such  public  roads  as  should  there- 
after be  found  necessary  for  the  use  of  the  inhabitants."- 
The  quantity  of  six  per  cent  was  fixed  as  the  permanent 
additional  allowance  for  that  purpose  and  provision 
was  made  therefor  in  the  Acts  of  November  20,  1700,^ 
and  of  June  7,  1712.^  Both  of  these  acts  were  repealed 
by  the  queen  .in  council,  for  reasons  having  nothing  to 
do  with  this  provision,  but  the  custom  was  established, 
and  it  is  the  law  of  this  state  that  the  owner  of  land 
taken  for  the  purpose  of  a  public  road,  has  no  right  to 
compensation  for  the  land  itself,  but  only  for  the  im- 
provements, unless  such  a  right  is  expressly  conferred 
by  statute.^  "The  six  per  cent,"  in  the  words  of  Chief 
Justice  Black,  "belongs  to  the  State  and  she  may  con- 

*  Charter  and  Laws  of  Pennsylvania,  467. 

^  McClenachan  v.  Curwen,  G  Binney's  Reports,  509;  3  Yeates's 
Reports,  362  (18C2). 

3 II  Statutes  at  Large,  118. 

*  11  Statutes  at  Large,  400. 

*  Pepper  and  Lewis's  Digest  of  Decisions,  Vol.  18,  col.  13567. 


250  EARLY  COURTS  OF  PENNSYLVANIA. 

stitutionally  appropriate  it  to  the  use  it  was  meant  for. 
1  speak  now  of  land  in  its  natural  state.  "Where  buildings 
are  pulled  down,  or  other  valuable  improvements  de- 
stroyed in  the  making  of  a  new  road,  the  right  to  com- 
pensation is  guaranteed  to  the  owner  by  the  constitu- 
tion."* 

On  the  eighteenth  of  April,  1G82,  Captain  Thomas 
Holme  was  commissioned  as  surveyor  general  of  the 
province  and  proceeded  to  the  Delaware,  where,  in  the 
summer  of  that  year,  a  site  for  the  city  of  Philadelphia 
was  chosen  and  the  ground  laid  out  in  streets  and  lots, 
according  to  the  general  directions  of  Penn  as  shown 
on  the  plan  usually  referred  to  as  Holme's  map  of  Phila- 
delphia. ^  If  the  streets  seem  narrow,  it  must  be  remem- 
bered that  the  plan  was  conceived  on  a  liberal  scale  for 
that  time.  When  the  city  was  laid  out  the  standard 
width  of  a  street  in  London  was  two  perches  or  thirty- 
three  feet.  Penn  determined  to  make  the  streets  wider 
in  Philadelphia,  so  as  to  prepare  for  future  growth,  and, 
accordingly,  established  the  standard  of  fifty  feet,  which 
is  about  three  perches.  Market  street  was  laid  out  one 
hundred  feet  wide.  Broad  street  one  hundred  and  thir- 
teen feet.  Arch  or  Mulberry  street  sixty-six  feet  or  four 
perches.^ 

Penn,  indeed,  was  determined  that  the  city  should 
not  be  cramped.  "Let  every  house,"  he  said  in  his 
instructions  to  the  commissioners  to  lay  out  the  city, 
"be  placed,  if  the  person  pleases,  in  the  middle  of  its 
plat  as  to  the  breadth  way  of  it,  that  so  there  may  be 
ground  on  each  side  for  gardens  and  orchards,  or  fields, 


1  Perryville  &  Z.  P.  R.  Co.  v.  Thomas,  20  Pennsylvania  Re- 
ports 91  (1852). 

2  Hazard's  Annals  of  Pennsylvania,  555. 

3  Philadelphia  v.   Hinckley,  9  Pennsylvania  District  Reports 
125  (1900). 


EARLY  COURTS  OF  PEXXSYLVAXIA.     251 

that  it  may  be  a  green  country  town,  which  will  never 
be  burnt,  and  always  be  wholesome."^ 

In  the  charter  of  October  25,  1701,"  erecting  the  town 
into  a  city,  Penn  ordained  that  the  streets  of  the  city 
should  forever  continue  as  they  were  then  laid  out  and 
regulated,  and  no  special  power  was  conferred  upon  th§ 
corporation  to  alter  the  plan.  This,  of  course,  applied 
to  the  old  city,  extending  from  Vine  street  on  the  north 
to  Cedar  (South)  street  on  the  south.  The  streets  in 
the  several  outlying  districts  were,  upon  their  incorpora- 
tion, plotted  under  special  acts. 

In  accordance  with  the  Frame  of  Government,  the 
provincial  council  assumed  jurisdiction  of  the  laying 
out  of  the  main  highways,  and  the  minutes  of  that 
body  are  full  of  references  to  such  matters.  At  a  meet- 
ing of  the  council  in  1686 — 

"A  Petition  Relating  to  highways  was  Read,  upon  wch  the 
Council!  agreed  yt  there  should  be  a  Sett  time  appointed  for 
ye  Councill  to  Inspect  all  y^  Business  relating  to  ye  Highways, 
and  to  Order  yt  ye  Roads  be  Laid  out  in  ye  most  proper  and 
Convenient  Places  within  this  Province."^ 

The  multiplicity  of  their  duties,  however,  prevented 
them  from  taking  entire  charge  of  road  cases,  and  by 
the  Act  of  March  1,  1683,'*  it  w^as  provided  that  each 
county  court  should  "appoint  and  settle  sufficient  cart- 
ways to  the  most  convenient  landing  places,  in  their 
respective  counties,  for  public  use  and  benefit."  A 
distinction  was  thus  made  between  the  great  provincial 
roads  or  king's  highways  and  the  local  roads  or  cart- 
w^ays  for  the  convenience  of  a  special  neighborhood. 
This   is  illustrated   by  two  resolutions  of  the  council, 

'  Hazard's  Annals  of  Pennsylvania,  530. 

^  1  Dallas's  Laws  of  Pennsylvania,  Appendix  11. 

»  I  Colonial  Records,  136,  18,  3  mo.  1686. 

*  Charter  and  Laws  of  Pennsylvania,  139. 


252     EARLY  COURTS  OF  PENNSYLVANIA. 

passed  within  a  couple  of  months  of  each  other.     In 
one  case  the  minutes  read : — 

"The  Petition  of  Henry  Jones  was  Read,  setting  forth  ye 
badness  of  the  way  from  Moyamensin  to  Philadelphia.  It  was 
Referred  to  ye  County  Court,  who  it's  presumed  has  power  to 
appoynt  Roads  to  Landing  Places,  to  Court,  &  to  Markett."' 

In  the  other  case : — 

"The  Councill  taking  into  Consideration  ye  Unevenesse  of 
ye  Road  from  Philadelphia  to  ye  falls  of  Delaware. 

"Agreed  that  Robt  Turner  &  John  Barnes  for  ye  County  of 
Philadelphia,  Arth.  Cook  and  Tho.  Janney  for  ye  County  of 
Bucks,  with  ye  Respective  Surveyrs  of  ye  sd  Counties,  meet  and 
Lay  out  a  more  Comodious  Road  from  ye  broad  Street  in  Phila- 
delphia to  ye  falls  aforesaid:  ye  time  when  is  Referred  to  ye 
members  Nominated."^ 

From  this  time  on  the  minutes  of  the  council  contain 
many  references  to  public  highways.  Petitions  were 
presented,  sometimes  by  individuals,  sometimes  by  the 
inhabitants  of  a  neighborhood  or  township,  complaining 
of  the  want  of  a  road  and  praying  for  an  order  to  lay 
out  the  same;  if  the  petition  was  approved,  the  usual 
practice  was  to  order  that  a  warrant  be  directed  to  the 
surveyor  general  to  lay  out  the  road.  The  following  is  a 
typical  case : — 

"Upon  the  memorial  of  the  Honble,  Andrew  Hamilton,  Esqr. 
Gor  of  the  Jersies,  &  post  master  generall,  &c.  to  the  Gor  & 
Council,  Setting  forth  that  it  was  formerlie  with  great  difficultie 
that  the  post  could  goe  to  Philadelphia  by  Land,  to  the  great 
inconvenience  of  Correspondence  &  trade,  and  yt  for  remedie 
whereof,  &  accommodaon  of  Travellers,  a  ferry  had  been  erected 
on  Jersie  side  att  a  great  chairge,  but  that  the  way  was  not  yet 
returned  from  the  landing  on  pennsilvania  side  to  the  king's 
road,  wch  is  about  three  Quarters  of  a  mile  &  easily  cleared ; 
And  therefore,  Requesting  the  Governor  &  Council  to  approve 
the  said  road,  and  give  the  necessarie  orders  for  clearing  it. 

1  I  Colonial  Records,  142,  3,  7  mo.  1686. 

2  I  Colonial  Records.  148,  19,  9  mo.  1686. 


EARLY  COURTS  OF  PENNSYLVANIA.     253 

"Ordered,  that  a  warrantt  be  directed  from  the  Governor 
to  Thomas  ff airman,  Surveyor,  To  lay  outt  the  king's  road  from 
dunck  WiUiam's  Landing,  (the  nearest  &  most  convenient  yt  may 
be  had,  &  Least  prejudicial  to  the  Lands  and  improvments  of 
the  nighbourhood,)  Into  the  king's  great  road  that  Leads  to 
Philadelphia,  and  that  a  Return  in  words,  of  the  Courses  & 
protracted  figure  thereof,  be  made  Into  the  Secries  office, 
in  order  to  be  filed  &  recorded  there,  as  a  finall  Confirmaon 
thereof.  And  that  the  Justices  of  the  peace  for  the  County 
of  Bucks,  be  by  the  Governor  requested  to  order  the  overseers 
of  ye  Highways  in  that  County  to  make  good  &  clear  the  same 
wt  all  expedion."* 

The  return  of  the  surveyor  general  is  as  follows : — 

"By  virtue  of  the  Governor's  speciall  warrant,  bearing 
date  ye  28th  day  of  October,  1696,  to  mee  directed,  psuant  to 
an  order  of  the  Govervor  &  Coimcil,  granted  upon  the  applicaon 
of  Andrew  Hamilton,  esqr.  Governor  of  ye  Jersies  &  post  mr 
generall,  I  have  surveyed  &  Laid  outt  the  king's  roade  from 
ye  Landing  of  dunken  Williams,  on  delaware,  in  the  Countie  of 
Bucks  &  province  of  pennsilvania.  Beginning  there  at  a  Spanish 
oak  att  High  water  mark;  thence  sixtie  foot  broad,  extending 
North  North-west  on  each  side  the  Line,  dividing  betwixt  the 
Land  of  the  sd  duncken  Williams  &  Nathaniel  Harding,  Two 
Hvmdred  pearches;  Thence  in  the  sd  duncken's  Land,  north 
eightie-One  degrees,  westerlie  fourtie  pearches;  Thence  north 
sixtie-foure  degrees,  westerly  sixty-two  pearches.  Unto  the 
old  king's  Roade  which  Leads  to  Philadelphia,  &  Hath  been 
ancientlie  Surveyed  &  Returned. "^ 

Occasionally  an  order  for  the  laying  out  of  a  road  is 
directed  to  a  number  of  individuals,  usually  six,  but 
these  roads  are  not  always  described  as  king's  roads,  and 
would  seem  sometimes  to  belong  to  the  class  of  roads 
ordinarily  laid  out  by  the  courts,  w^hich  the  council,  in  a 
few  instances,  undertook  to  order,  in  the  exercise  of 
their  supervisory  functions  still  undefined.  In  fact 
there  are  instances  where  their  order  was  for  the  con- 


'  I  Colonial  Records,  463,  October  28,  1696. 
2  I  Colonial  Records,  407,  October  :31,  1690. 


254  EARLY  COURTS  OF  PENNSYLVANIA. 

firmation  of  an  old  road  merely,  or  to  settle  a  disagree- 
ment between  the  parties  interested  and  the  viewers 
appointed  by  the  county  court. 

An  interesting  case  was  that  of  Robert  Wade,  the 
owner  of  a  tract  of  land  in  Chester,  the  whole  of  which 
was  taken  by  the  grand  jury  for  a  public  landing  place 
and  open  street,  without  Wade's  knowledge  or  consent 
and  without  offering  him  any  compensation.  Upon  his 
protesting  the  justices  stated  that  they  "Seazed  it  for 
the  king,"  whereupon  he  petitioned  the  council,  stating — 

"That  the  petitionr  being  a  freeman,  cannot  by  Law  be 
disseized  of  his  freehold  but  by  the  Judgment  of  his  12  equalls, 
by  a  Legall  tryall,  and  which  act  of  the  Court  has  been  to  the 
petitioner's  great  Loss  &  damage,  who  is  daylie  threatened  to 
have  what  hee  shall  build  on  sd  his  Land  pulled  downe  and 
throwen  in  the  sd  creek,  and  therfor,  requesting  such  remedie 
&  redress  in  the  premisses  as  is  agreeable  to  Justice  &  equitie."^ 

The  council  sent  to  the  court  for  a  copy  of  the  pro- 
ceedings, and  on  further  debate  it  was  resolved  that  the 
action  of  the  grand  jury  was  unjustified  and  an  order 
made  that  the  petitioner  be  no  further  molested  in  the 
peaceable  possession  of  his  property.^ 

This  isolated  attempt  by  the  grand  jury  to  assume  the 
right  of  eminent  domain  having  been  promptly  frus- 
trated, the  real  doubt  as  to  how  the  Act  of  1G83  was 
to  be  interpreted  was  resolved  by  a  further  act  defining 
the  practice  in  road  cases,  passed  May  10,  1699.^  This 
was  re-enacted  in  almost  the  same  language  in  the  Act 
of  November  27,  1700,^  as  follows,  the  only  substantial 
additions  being  the  clauses  bracketed : — 

"Section  L  Be  it  enacted  by  the  Proprietary  and  Governor, 
by  and   with   the   advice  and   consent  of  the  freemen  of  this 

1  I  Colonial  Records,  402,  February,  13,  1693-4. 

2 1  Colonial  Records,  441,  May  25,  1695.  * 

^  Charter  and  Laws  of  Pennsylvania,  285. 

*  II  Statutes  at  Large,  68. 


EARLY  COURTS  OF  PENNSYLVANIA.     255 

Province  and  Territories  in  General  Assembly  met,  and  by  the 
authority  of  the  same,  That  all  the  King's  highways  or  public 
roads  within  this  province  or  cotmties  annexed,  shall  be  laid 
out  by  order  of  the  governor  and  council  for  the  time  being; 
which  roads  shall  be  recorded  in  the  coimcil  book,  with  the 
courses  thereof,  as  near  as  may  be  done. 

"Section  IL  And  be  it  further  enacted  by  the  authority 
aforesaid.  That  the  justices  of  each  coimty  court  within  this 
government  shall,  and  by  virtue  of  this  act  have  power,  as 
often  as  they  find  needful,  in  open  court  to  order  and  appoint 
six  sufficient  housekeepers  of  the  neighborhood  inhabiting  near 
the  place  where  complaint  is  made  for  want  of  a  road  or  cartway 
unto  the  public  road,  who  shall  view  the  said  place;  and  if  the 
said  housekeepers,  or  any  four  of  them,  are  satisfied  that  there 
is  occasion  for  a  road  or  cartway  to  be  laid  out,  according  to 
the  complainant's  or  complainants'  desire,  then  they  shall  and 
may  lay  out  the  same,  [in  and  through  such  convenient  places  as 
they  shall  think  may  be  least  to  the  damage  or  inconveniency 
of  the  neighbors  or  parties  concerned,  and  least  injurious  to 
the  settlements  thereabouts;]  and  of  such  breadth  as  the  justices 
shall  order  and  appoint,  so  that  it  exceed  not  fifty  feet;  and 
shall  make  return  thereof  under  their  hands  to  the  next  county 
court  after  it  is  laid  out;  and  if  then  and  there  the  justices 
approve  the  same,  it  shall  at  the  same  court  be  entered  upon 
record,  and  from  thenceforth  be  taken,  deemed  and  allowed  to 
be  a  lawful  road  or  cartway  from  that  time  forwards. 

"[Provided,  That  no  such  road  shall  be  carried  through  any 
man's  improved  lands  but  where  there  is  a  necessity  for  the 
same;  and  where  that  appears,  the  respective  county  courts 
shall  appoint  six  indifferent  men  to  view  and  adjudge  the  value 
of  so  much  of  such  improved  lands  as  shall  be  taken  up  for  the 
use  aforesaid,  and  the  value  thereof  shall  be  paid  to  the  owner 
of  the  said  land  out  of  the  respective  county  stock.] 

"And  to  prevent  any  difference  that  may  arise  among  neighbors 
about  roads  or  cartways  laid  out  by  order  of  the  governor  and 
council,  or  any  of  the  coimty  courts  in  this  government,  and 
which  are  or  shall  be  entered  upon  record,  either  before  or 
after  the  making  and  publishing  of  this  act: 

"Section  IIL  Be  it  enacted  by  the  authority  aforesaid,  That 
all  such  roads  and  cartways  as  before  mentioned,  shall  be 
taken,  deemed  and  allowed  to  be  free,  open  and  lawful  roads 
and  cartways  from  the  time  they  are  so  laid  out  and  recorded 
as  aforesaid." 


256  EARLY  COURTS  OF  PENNSYLVANIA. 

This  act  was  the  real  foundation  of  the  system  of 
laying  out  and  opening  township  roads  in  Pennsylvania. 
Its  salient  features  were  the  provision  for  the  appoint- 
ment of  six  viewers  to  report  on  the  necessity  for  the 
road  before  confirmation  by  the  court,  and  the  further 
provision  that,  where  it  became  necessary  to  carry  the 
road  through  improved  lands,  six  viewers  should  be 
appointed  to  adjudge  the  value  of  the  improvements  so 
taken,  which  was  to  be  paid  for  out  of  the  county  stock. 

By  a  supplementary  act  of  February  20,  1735,^  the 
justices  of  the  quarter  sessions  were  empowered,  on  the 
application  of  any  person  for  a  road  from  the  plantation 
or  dwelling  place  of  such  person  to  or  from  a  highway, 
to  direct  a  view,  and  if  such  road  be  found  necessary, 
to  order  it  laid  out,  not  exceeding  thirty-three  feet  in 
width,  the  value  of  the  improved  land  taken  to  be  paid 
for  by  the  person  at  whose  request  it  was  laid  out,  who 
was  also  to  clear  and  maintain  the  same. 

The  result  of  this  legislation  was  to  establish  three 
kinds  of  roads:  (1)  The  great  provincial  roads  or  king's 
highways,  laid  out  by  order  of  the  provincial  council; 
(2)  Cartways  leading  into  public  roads,  laid  out  by  order 
of  the  justices  of  the  county  courts  upon  the  report  of 
viewers,  and  (3)  Private  roads,  likewise  laid  out  by  order 
of  the  justices  upon  the  report  of  viewers.^  The  last 
were  common  roads  for  the  use  not  only  of  the  persons 
for  whom  they  were  laid  out  but  for  all  who  should  have 
occasion  to  travel  to  the  plantations  of  such  persons. 
Some  interesting  information  as  to  the  procedure  may 
be  gleaned  from  the  minutes  of  the  council,  where  road 
matters  were  frequently  under  consideration.  Thus, 
on  October  7,   1737,  on  consideration  of  a  petition  of 

1  IV  Statutes  at  Large,  296. 

^  McClenachan  v.  Curwen,  6  Binney's  Reports,  509;  s.  c.  3 
Yeates's  Reports  362  (1802). 


EARLY  COURTS  OF  PENNSYLVANIA.     257 

sundry  inhabitants  of  Lancaster  County,  setting  forth 
the  want  of  a  high  road  from  the  town  of  Lancaster  to 
Coventry  Iron  Works  on  French  Creek  in  Chester 
County  and  praying  for  the  appointment  of  proper 
persons  to  lay  out  the  same,  the  council  granted  the 
prayer  of  the  petition  and  directed  that  six  persons 
appointed  from  Lancaster  County  or  any  four  of  them 
view  and  lay  out  a  high  road  to  the  division  line  between 
Lancaster  and  Chester  counties;  that  six  persons  ap- 
pointed from  Chester  County,  or  any  four  of  them,  there 
join  the  others  and  agree  on  the  most  convenient  passage 
over  the  division  line  and  continue  the  road  to  the 
terminus  and  that  the  twelve,  or  eight  of  them,  make 
return  to  the  council  for  confirmation.^  The  duties  of 
the  viewers,  it  will  be  noticed,  were  limited  to  their 
respective  counties. 

On  March  24,  1736-7,  an  elaborate  draft  of  a  road 
from  Harris's  Ferry  on  the  Susquehanna  River  to 
Kennison's  plantation  in  Chester  County  was  returned 
by  the  viewers,  eleven  of  whom  signed  the  report.^  A 
petition  by  some  inhabitants  of  Chester  County  was  pre- 
sented, objecting  to  the  road  as  laid  out,  and  praying  for 
a  review.  Other  citizens  supported  the  report,  and  after 
hearing  the  petitioners  for  the  review  withdrew  their 
petition  and  the  road  was  confirmed  as  laid  out.  Never- 
theless, the  parties  being  still  dissatisfied  and  the  quarter 
sessions  of  Chester  County  being  of  opinion  that  the 
road  as  laid  out  was  impracticable,  new  petitions  were 
presented  to  the  council  for  and  against  the  road.  After 
full  argument  the  council,  finding  that  all  the  objec- 
tions were  to  that  part  of  the  road  in  Chester  County, 
appointed  six  persons  from  that  county  to  review  the 
road  from  the  county  line  and  make  such  alterations  to 

'  IV  Colonial  Records,  247,  October  7,  1737. 
*  IV  Colonial  Records  181,  March  24,  1736-7. 


258     EARLY  COURTS  OF  PENNSYLVANIA. 

the  best  of  their  judgment  "as  may  truly  answer  the 
intention  of  accommodating  both  Country  and 
travellers."*  Upon  the  report  of  the  reviewers  the  fol- 
lowing order  was  made: — 

"The  Board,  on  due  Consideration  had  of  the  said  Return, 
and  of  the  Draught  accompanying  it,  do  approve,  establish,  & 
confirm  the  Road  aforesaid  as  now  laid  out  and  reviewed, 
agreeable  to  which  Return  the  Confirmation  formerly  made  bj' 
an  Order  of  Council  of  the  twenty-fourth  day  of  March,  1736-7, 
is  directed  to  be  amended,  and  the  said  Road  is  hereby  declared 
to  be  the  King's  Highway  or  Publick  Road,  and  It  is  Recom- 
mended to  the  Justices  of  the  Peace  for  the  County  of  Chester, 
that  they,  at  their  next  ensuing  Quarter  Sessions,  issue  Direc- 
tions to  the  Overseers  of  the  Highways  for  causing  the  said 
Road  to  be  opened  &  cleared,  so  that  it  may  be  rendred  commodi- 
ous for  the  Publick  Service."'* 

The  foregoing  record  is  interesting  as  showing  the 
practice  of  granting  reviews  in  the  case  of  provincial  as 
well  as  county  roads,  and  other  instances  will  be  found 
in  the  minutes  of  the  council.  In  the  case  of  a  road 
laid  out  by  the  quarter  sessions  it  was  held  in  1764  that 
a  review,  though  not  taken  notice  of  in  the  act  of  assem- 
bly, had  always  been  granted  and  had  become  a  matter 
of  right. •■'  By  the  Act  of  April  6,  1802,"  the  quarter 
sessions  were  required  to  grant  a  review  in  all  cases, 

>  IV  Colonial  Records,  283,  March  22,  1737-8. 

«  IV  Colonial  Records,  287,  May  15,  1738. 

3  King's  Road,  1  Dallas's  Reports  11  (1764).  In  re  Road  in 
Chester  County,  Supreme  Court  Docket  No.  4,  page  37,  Septem- 
ber Term,  1764,  on  certiorari  the  order  is  reversed  "for  refusing 
to  grant  a  review,  and  reviewers  appointed."  Is  this  the  same 
case?  Lewis  Gordon,  writing  to  Richard  Peters,  March  18, 
1758,  signified  his  intention  to  apply  for  a  review  of  a  road,  but 
observed  that  the  practice  was  declaimed  against,  except  where 
fraud  appeared.     VII  Pennsylvania  Archives  (2  Series),  254. 

*3  Smith's  Laws  of  Pennsylvania,  521,  §  22.  See  also  §  25 
of  the  act  of  June  13,  1836,  P.  L.  551. 


EARLY  COURTS  OF  PENNSYLVANIA.  259 

prov  ded  the  application  was  made  at  the  next  court 
after  the  report  had  been  made  en  the  first  view.  The 
appointment  of  re-reviewers  is  discretionary. 

The  Act  of  April  G,  1802,  just  referred  to,  was  a  gen- 
eral road  law  which  replaced  the  older  legislation  with 
greater  elaboration  of  detail.  It,  in  turn,  was  repealed 
by  the  general  road  law  of  June  13,  1836,^  an  act,  drafted 
by  the  commissioners  to  revise  the  civil  code,  which 
embodied  the  previous  legislation  and  practice  in  a  clear 
and  comprehensive  form.  This  act,  with  its  amend- 
ments, is  still  in  force  and  is  the  only  general  road  law 
applicable  to  all  parts  of  the  commonwealth,  but  its 
operation  has  been  greatly  restricted  by  local  and  special 
acts. 

Briefly  stated  the  Act  of  1836  provides  that  the  court 
of  quarter  sessions,  on  being  petitioned  to  grant  a  view 
for  a  road  within  the  county,  shall  appoint  six  viewers 
(since  reduced  to  three), ^  who,  if  they  agree  that  there  is 
occasion  for  the  road,  are  to  proceed  to  lay  out  the 
same  so  as  to  do  least  injury  to  improved  property  and 
also  meet  the  desire  of  the  petitioners.  The  viewers  are 
required  to  report  at  the  next  term  of  court,  annexing 
a  draft  of  the  road,  stating  the  courses  and  distances  and 
briefly  noting  the  improvements  and,  when  practicable, 
they  are  not  to  lay  out  the  road  at  an  elevation  exceed- 
ing five  degrees  except  at  crossings  of  ravines  and 
streams.  If  the  court  approve  the  report  they  must 
direct  of  what  breadth  the  road  shall  be  opened^  and  at 
the  next  court  the  whole  proceedings  are  to  be  entered 
of  record   and  the   road  deemed  and  allowed  to  be  a 


ip.  L.  551. 

«  Act  of  May  8,  1889,  P.  L.  129. 

^  Section  5  of  the  act  fixed  the  maximum  breadth  of  a  public 
road  at  50  feet  and  of  a  private  road  at  25  feet.  The  maximum 
breadth  of  a  public  road  is  fixed  at  80  feet  by  the  act  of  June  7, 
1907,  P.  L.  452. 


200     EARLY  COURTS  OF  PENNSYLVANIA. 

public  road  or  highway  or  a  private  road  as  the  case 
might  be. 

Public  roads  were  to  be  kept  in  repair  at  the  expense 
of  the  township;  private  roads  at  the  expense  of  the 
petitioner.  Reviews  might  be  granted  if  applied  for 
at  or  before  the  next  term  of  court  after  the  report  on 
the  first  view.  The  owner  of  any  land  through  which 
the  road  was  laid  out  might,  within  one  year  from  the 
opening,  petition  for  the  appointment  of  six  viewers  to 
assess  his  damages,  who  were  to  report  to  the  next  court 
the  injury  done,  and  if  their  report  was  approved  the 
amount  assessed  was  to  be  paid  out  of  the  county  stock. 

The  Act  of  May  14,  1874,^  following  various  prior 
local  acts,  provides  that  the  viewers  appointed  to  lay 
out  the  road  shall  endeavor  to  procure  releases  from 
property  owners  and  shall  assess  the  damages  sustained, 
thus  combining  the  laying  out  of  roads  and  the  assess- 
ment of  damages  in  one  view,  and  obviating  the  neces- 
sity of  a  separate  view  for  damages,  except  in  such 
counties  as  may  have  local  laws  inconsistent  with  the 
Act  of  1874.  These  proceedings  seem  simple  enough, 
but  a  glance  at  the  hundreds  of  bitterly  contested  cases 
would  indicate  otherwise.  Every  step,  in  fact,  has  been 
the  subject  of  protracted  litigation  and  voluminous 
opinions,  which  must  be  carefully  studied  at  every  stage 
of  this  intricate  game  of  the  law. 

The  general  road  law  of  1836  conferred  no  authority 
on  the  quarter  sessions  to  grant  a  view  to  widen  a  road 
or  street,  but  this  jurisdiction  was  conferred  by  the  Act 
of  May  8,  1850.  ^ 

As  to  the  vacation  of  roads,  the  Act  of  1836  provided 
that  the  quarter  sessions  should  have  power,  on  petition, 
to  change  or  vacate  the  whole  or  any  part  of  a  public  or 


1  P.  L.  164,  §  L 

^  P.  L.  713;  Church  Road,  5  Watts  &  Sergeant's  Reports,  200 
(1843). 


EARLY  COURTS  OF  PENNSYLVANIA.     261 

private  road  which  had  become  inconvenient,  useless  or 
burdensome,  and  to  vacate  and  annul  a  road  laid  out, 
but  not  opened,  on  petition  of  a  majority  of  the  original 
petitioners.  No  authority  was  given  to  vacate  a  road 
confirmed  and  parti}-  opened,  but  this  defect  was  reme- 
died by  the  Act  of  May  3,  1855,^  which,  however,  ex- 
pressly excepted  state  roads,  authorized  by  special  law, 
and  streets  in  incorporated  cities  and  boroughs.  The 
Act  of  May  8,  1854,'  conferred  jurisdiction  on  the 
quarter  sessions  to  vacate  any  private  or  public  lane, 
alley,  road  or  highway  whenever  the  same,  by  reason  of 
forming  of  town  plots  or  otherwise,  had  become  useless 
to  the  public  and  those  having  lands  bounding  thereon. 

Whenever  the  whole  or  a  part  of  a  road  is  vacated, 
changed  and  supplied  by  a  new  one,  the  old  road  cannot 
be  closed  until  the  road  laid  out  to  supply  its  place  is 
actually  opened  and  made.^ 

With  the  dissolution  of  the  provincial  government  in 
1776  the  jurisdiction  of  the  council  in  matters  relating 
to  the  laying  out  of  highways  came  to  an  end  and  the 
constitution  adopted  in  that  year  conferred  no  special 
jurisdiction  in  such  affairs  upon  its  successor,  the 
supreme  executive  council.  As  a  consequence,  the 
great  roads  through  the  sparsely  inhabited  sections  of 
the  state,  where  the  settlers  were  unwilling  or  unable 
to  bear  the  expense  of  constructing  such  highways  as 
the  public  service  required,  were  authorized  by  special 
acts  of  the  legislature.  Such  an  act  was  that  of  Septem- 
ber 21,  1785,^  directing  the  president,  or  in  his  absence 
the    vice-president,    in   council   to    appoint   three    free- 

1  P.  L.  422;  Greenwich  Township  Road,  11  Pennsylvania  Re- 
ports, 186  (1849). 

2  P.  L.  645. 

'  Bridgeport  &  A'.  C.  T.  Road,  171  Pennsylvania  Reports, 
312  (1895). 

*  2  Dallas's  Laws  of  Pennsylvania,  389. 


262     EARLY  COURTS  OF  PENNSYLVANIA. 

holders  as  commissioners  to  view,  survey  and  lay  out  a 
state  highway  from  Miller's  Springs  in  Cumberland 
County  to  Pittsburg,  of  the  breadth  of  fifty  feet,  and  to 
report  to  the  president  and  council,  who  were  to  confirm 
the  same  or  order  a  review.  The  highway,  when  so 
established,  was  to  remain  a  state  highway  and  the 
courses  and  distances  to  be  entered  in  the  council  book. 
An  appropriation  of  £2000  was  made  for  this  enterprise. 
This  road  was  in  part  laid  out,  and  confirmed  by  the 
council  November  24,  1787,'  as  far  as  Bedford,  but  a 
review  was  ordered  of  the  other  part  from  Bedford  to 
Pittsburg.  By  a  resolution  of  the  assembly  of  Novem- 
ber 21,  1788,  the  council  was  ordered  to  draw  for  the 
expenses  of  the  review,  and,  accordingly,  by  order  of 
the  council  March  14,  1789,^  reviewers  were  appointed, 
whose  report  was  confirmed  September  28,  1790.^ 

Many  state  roads  were  laid  out  by  commissioners 
under  similar  acts  and  it  cannot  be  doubted  that,  in  the 
early  days,  such  proceedings  were  of  use  where  a  road 
was  desired  through  several  counties,  whose  conflicting 
demands  it  was  difficult  to  reconcile.  But  in  later  years 
the  power  of  the  legislature  was  greatly  abused  and  the 
constitution  of  1874  has  forbidden  the  passage  of  any 
local  or  special  law  authorizing  the  laying  out,  opening 
or  altering  of  highways.  * 

As  for  the  local  acts  containing  variations  from  the 
general  road  law,  it  would  be  useless  to  attempt  to 
summarize  them.  A  list  of  such  acts,  published  in  3 
Pennsylvania  County  Court  Reports,  401,  covers  eight 
pages  of  small  type  and  is  really  appalling.  And  yet 
this  list  does  not  include  Philadelphia  County,  which, 

>  15  Colonial  Records  331,  November  24,  1787. 

2  16  Colonial  Records  26,  March  14,  1789. 

3  16  Colonial  Records  466,  September  28,  1790. 

*  Constitution  of  Pennsylvania,  1874,  Article  III,  §  7. 


EARLY  COURTS  OF  PENNSYLVANIA.     263 

prior  to  the  consolidation  in  1854,  included,  besides  the 
city  proper,  six  boroughs,  ten  incorporated  districts 
and  thirteen  townships,  many  of  which  had  their  own 
highway  systems.  ^ 

In  Philadelphia,  as  previously  stated,  the  principal 
streets  were  laid  down  by  the  surveyor  general  on  the 
original  town  plan  and  no  special  power  was  conferred 
on  the  corporation  to  change  that  plan.  The  Act  of 
April  15,  1782,^  declared  that  streets  theretofore  opened 
to  public  use  by  private  persons  or  directed  to  be  laid 
out  by  the  supreme  executive  council  should  be  con- 
sidered and  deemed  public  highways.  The  Act  of 
March  25,  1805,  empowered  the  quarter  sessions,  on 
petition,  to  grant  views  for  the  laying  out  and  opening 
of  streets  in  Philadelphia.  This  act  was  supplied  and 
repealed  by  the  general  road  law  of  1836,  which  instituted 
a  rather  cumbersome  method  of  summoning  road  viewers 
and  was  in  turn  repealed  and  supplied  by  the  Act  of 
March  16,  1866.^  The  streets  in  the  districts  first  incor- 
porated were  directed  by  local  acts  to  be  surveyed  and 
laid  out  by  the  commissioners  of  the  districts,  who  were 
required  to  return  a  general  plan  (in  the  case  of  South- 
wark,to  the  supreme  executive  council;  in  the  case  of 
Spring  Garden,  to  the  quarter  sessions)*,  which,  on 
approval,  was  recorded.  The  subsequent  opening  of 
the  streets,  so  laid  out,  was  on  petition  of  a  stated 
number  of  freeholders  to  the  quarter  sessions.  This 
system,  with  minor  modifications,  was  extended  to  the 
other  municipalities  by  local  acts  which  will  be  found 
in  Price's  Index  to  Local  Legislation  in  Pennsylvania. 


*  Addick's  Philadeljjhia  Highway  Acts. 

*  2  Smith's  Laws  of  Pennsylvania,  48,  §  10. 
3  P.  L.  224. 

*  Act  of  September  29,  1787,  2  Smith's  Laws  of  Pennsylvania, 
435;  Act  of  March  22,  1813;  6  Smith's  Laws  of  Pennsylvania,  37. 


264     EARLY  COURTS  OF  PENNSYLVANIA. 

Section  27  of  the  Act  of  February  2,  1854/  by  which 
the  various  municipal  corporations  in  Philadelphia 
County  were  consoHdated  into  one  city,  established  a 
board  of  surveyors  who,  by  an  amendment  passed  in 
the  following  year, ^  were  directed  to  cause  a  survey  of 
the  city  plot  to  be  completed.  By  the  Act  of  June  6, 
1871,^  the  board  of  surveys  is  empowered  to  examine 
and  confirm  or  reject  all  plans  of  survey  or  revision  of 
plans  made  under  direction  of  councils. 

Streets  in  Philadelphia  may  be  opened  either  by  ordi- 
nance of  councils  or  by  the  quarter  sessions.  Under  the 
Act  of  April  21,  1855,*  councils  may  order  any  street 
laid  down  on  the  city  plan  to  be  opened,  whenever  they 
deem  the  public  exigency  to  demand  it,  giving  three 
months'  notice  to  the  owner.  This  act,  it  has  been  said, 
was  intended  only  for  special  cases  requiring  speedy 
action,  but,  as  councils  are  the  judges  as  to  when  the 
exigency  exists,  there  is  no  review  of  their  decision, 
and,  in  practice,  this  is  the  usual  method  pursued. 
The  quarter  sessions  has  concurrent  jurisdiction,  by 
proceedings  on  petition,  to  order  the  opening  of  a  street 
laid  down  on  the  city  plan,  but  the  court  will  not  appoint 
viewers  when  the  opening  of  the  street  is  so  inadvisable 
that  confirmation  of  a  report  favorable  to  an  opening 
would  be  withheld.^  When  a  plotted  street  is  opened 
by  ordinance,  a  jury  of  six  viewers  is  appointed  by 
the  quarter  sessions  to  assess  the  damages,  and  if  the 
proceedings  are  begun  in  that  court,  the  same  viewers 
pass  on  the  damages  as  report  on  the  necessity  for  open- 


>P.  L.  21. 

2  Act  of  April  21,  1855,  P.  L.  264,  §  4. 

3  P.  L.  1353.     In  re  Plan  166,  143  Pennsylvania  Reports,  414 
(1891). 

*  P.  L.  264,  §  7,  Large  v.   Philadelphia,  35  Pennsylvania  Re- 
ports, 231  note  (1859). 

'  Twenty- Eighth  Street,  102  Pennsylvania  Reports,  140  (1883). 


EARLY  COURTS  OF  PENNSYLVANIA.     265 

ing.  The  general  Act  of  May  8,  1889,^  providing  that 
juries  of  view  shall  consist  of  three  persons,  does  not 
apply  to  juries  appointed  by  the  quarter  sessions  of 
Philadelphia  nor  is  the  jurisdiction  of  that  court  affected 
by  the  general  Act  of  May  16,  1891.-  The  juries  ap- 
pointed to  assess  damages  are  also  to  assess  benefits  upon 
the  properties  whose  value  is  enhanced  by  the  opening, 
which  benefits  are  to  be  collected  by  the  city  as  in  other 
cases  of  municipal  assessments. 

While  the  matter  is  of  academic  rather  than  practical 
interest,  it  is  curious  to  note  that  proceedings  might 
still  be  brought  to  open  streets  laid  down  on  the  plans 
of  the  old  incorporated  districts  under  the  special  systems 
prevailing  in  those  districts,  it  having  been  held  as  late 
as  1878,^  that  the  clause  in  the  Act  of  1813  relating  to 
the  opening  of  streets  in  the  district  of  Spring  Garden 
was  still  in  force.  It  is  highly  improbable  that  such  a 
proceeding  could  be  carried  to  a  successful  issue,  as  these 
acts  constitute  the  forgotten  lore  of  a  previous  genera- 
tion, and  the  courts  are  increasingly  inclined  to  leave 
such  matters  to  the  municipal  authorities  who  must 
devise  the  means  of  paying  for  public  improvements. 

As  to  changes  of  grade  in  Philadelphia,  in  section  27 
of  the  consolidation  act  there  w^as  a  proviso  that  com- 
pensation should  be  made  for  damage  to  private  prop- 
erty resulting  from  any  changes  in  the  plans  adopted 
under  that  section,  but  this  was  held  to  apply  only  to 
alterations  and  revisions  of  grades  previously  established 
by  the  old  city  or  other  municipalities  before  the  con- 
solidation. Hence,  a  paper  change  made  in  a  grade 
established  after  the  consolidation  gave  the  land  owner 
no  right  to  proceed  in  the  quarter  sessions,  his  remedy 

ip.  L.  129. 

*  P.  L.  75;  Orthodox  Street,  1  Pennsylvania  District  Reports, 
37  (1892). 

»  Parrtsh  Street,  12  Philadelphia  Reports,  638  (1878). 


266     EARLY  COURTS  OF  PENNSYLVANIA. 

being  under  Article  XVI,  §  8  of  the  constitution  of  1874 
upon  the  physical  change.  Prior  to  1891  this  remedy 
was  enforceable  by  action  of  trespass.  Since  the  passage 
of  the  Act  of  May  16,  1891,  petitions  for  the  assessment 
of  damages  for  changes  of  grade  are  assigned  to  the 
common  pleas  and  three  viewers  appointed.* 

Space  will  not  permit  a  reference  to  many  other  inter- 
esting features  in  Philadelphia's  local  system  and  in  the 
local  systems  of  other  parts  of  the  state.  That  of  Pitts- 
burg has  had  an  important  influence  on  subsequent 
general  legislation  on  the  subject  of  streets  in  munici- 
palities. By  a  series  of  acts,  beginning  with  that  of 
January  6,  1864,^  authority  to  lay  out,  open  and  widen 
streets  in  Pittsburg  was  vested  in  councils,  with  very 
extensive  powers  in  the  matter  of  assessing  and  collect- 
ing assessments  for  benefits.  These  powers,  having 
been  exercised  in  an  arbitrary  and  reckless  manner,  were 
resisted  by  property  owners,  and  certain  acts  framed  to 
strengthen  the  hands  of  the  municipal  authorities  hav- 
ing been  declared  unconstitutional,  the  whole  matter 
was  thrown  into  great  confusion.^  To  remedy  this,  a 
series  of  curative  acts  was  passed,  concluding  with  the 
Act  of  May  16,  1891,*  which,  while  in  form  and  intent  a 
general  act,  is  but  a  part  of  the  series  and  manifestly 
intended  as  a  blanket  supplement  to  the  others,  to 
supply  deficiencies  and  confirm  doubtful  powers  under 
existing  legislation.  This  act  was  held  applicable  to 
municipal  corporations  generally,  but  does  not  super- 
sede previous  legislation  or  confer  new  rights,  such  as 


'  Inre  Plan  166,  143  Pennsylvania  Reports,  414  (1891). 

2  P.  L.  1131. 

3  Wyoming  Street,  137  Pennsylvania  Reports,  494  (1891); 
Pittsburg's  Petition,  138  Pennsylvania  Reports,  40  (1891); 
Donley  v.  Pittsburg,  147  Pennsylvania  Reports,  348  (1892). 

■*  P.  L.  75;  Howell  v.  Morrisvillc  Borough,  212  Pennsylvania 
Reports,  349  (1905). 


EARLY  COURTS  OF  PENNSYLVANIA.  267 

the  right  to  damages  for  the  vacation  of  a  public  high- 
way which,  ordinarily,  does  not  exist  unless  conferred 
by  a  special  law.  By  reason  of  its  many  practical 
features  the  Act  of  1891  may  in  time  become  the  basis 
of  a  uniform  system. 

Boroughs  incorporated  under  the  general  borough 
Act  of  April  3,  1851/  are  authorized  to  ordain  and  lay 
out  streets  within  the  borough  limits,  but  in  boroughs 
incorporated  prior  to  the  general  borough  act  and 
having  no  special  provisions  on  the  subject  in  their 
charters,  the  jurisdiction  to  lay  out  streets  is  in  the 
quarter  sessions  under  the  general  road  law.  The  Act 
of  1891  may  be  used  in  boroughs  as  an  alternative 
method  of  proceeding.^ 

The  counties  of  Erie  and  Bradford  have  under  their 
local  acts  a  system  radically  different  from  the  general 
road  law\^  By  these  acts  the  authority  to  lay  out  roads 
is  vested  in  the  road  commissioners  of  the  townships, 
who  may  be  required  to  view  a  proposed  route  for  a 
road  on  petition  of  twelve  citizens  of  the  township. 
From  their  action  any  person  affected  may  appeal  to  a 
justice  of  the  peace,  who,  if  he  finds  there  is  good  cause 
of  complaint,  issues  a  summons  to  six  disinterested 
citizens  as  jurors,  and  the  decision  of  the  justice  and 
jurors  is  reviewable  only  by  certiorari. 

Article  XVI,  §  8  of  the  constitution  of  1874  secures 
an  appeal  from  any  preliminary  assessment  of  damages 
and  a  trial  by  jury  whenever  private  property  is  taken, 
injured  or  destroyed  by  a  municipal  or  other  corpora- 
tion, or  an  individual  invested  with  the  privilege  of  tak- 


'  P.  L.  230. 

'^  Dorrance  v.  Dorrancetown  Borough,  181  Pennsylvania  Re- 
ports, 164  (1897). 

«  Acts  of  April  13,  1843,  P.  L.  218;  April  5,  1844,  P.  L.  200; 
March  26,  1846,  P.  L.  175;  April  15,  1857,  P.  L.  205.  See  Act  of 
July  2,  1901,  P.  L.  607,  §  2. 


268     EARLY  COURTS  OF  PENNSYLVANIA. 

ing  private  property  for  public  use.  The  Act  of  June  13, 
1874,*  is  intended  to  carry  this  provision  into  effect, 
where  no  sufficient  provision  for  a  jury  trial  already 
existed.  Counties  and  townships  having  been  held  not 
to  be  municipal  corporations  within  the  Act  of  1874,  it 
was  provided  by  the  Act  of  May  20,  1891, 'that  an  appeal 
might  be  taken  to  the  common  pleas  by  any  party 
aggrieved  by  the  decree  of  any  court  of  quarter  sessions, 
confirming  the  report  of  viewers  appointed  to  assess 
damages  for  the  opening,  condemning  or  change  of  grade 
of  any  street,  road  or  highway,  for  a  trial  of  the  ques- 
tion of  damages  by  a  jury  according  to  the  course  of 
common  law. 

As  to  damages,  an  allusion  has  been  made  to  the 
effect  of  the  six  per  cent  allowance  for  ^oads  in  original 
grants  by  the  proprietors  or  the  commonwealth.  The 
constitution  of  1790  contained  no  restriction  on  the 
taking  of  private  property  for  public  use  except  that  in 
Article  IX,  §  10,  it  was  provided  that  no  man's  prop- 
erty should  be  taken  or  applied  to  public  use  "without 
just  compensation."^  A  smiliar  provision  was  contained 
in  the  constitution  of  1838  and  is  embodied  in  the  bill 
of  rights  to  the  constitution  of  1874  (Article  I,  §  10). 
Besides  this.  Article  VII,  §  4,  of  the  constitution  of  1838 
provided  that  the  legislature  should  not  invest  any 
corporate  body  or  individual  with  the  privilege  of  taking 
private  property  for  public  use,  without  requiring  com- 
pensation to  be  made  or  secured  to  the  owner  of  such 
property.  Under  this  clause  it  was  held  that  there  was 
no  liability  for  consequential  injuries.  *     To  remedy  this 


>  P.  L.  283. 

^  P.   L.    116;    Pusey's  Appeal,   S3   Pennsylvania   Reports,   67 
(1877). 

^  Pepper  and  Lewis's  Digest  of  Decisions,  Vol.  18,  col.  31570. 
*  O'Connor  v.  Pittsburg,  18  Pennsylvania  Reports,  187  (1851). 


EARLY  COURTS  OF  PENNSYLVANIA.     269 

the  constitution  of  1S74,  in  Article  XVI,  §  8,  added 
"injured  and  destroyed"  to  the  words  "property  taken," 
and  compensation  may  now  be  recovered  in  the  case  of 
any  property  suflEiciently  near  the  improvement  to  make 
the  injury  proximate,  immediate  and  substantial.* 

In  assessing  damages  in  road  cases,  the  measure  of 
damages,  stated  in  the  briefest  possible  terms,  is  the 
difference  in  the  market  value  of  the  property  injured 
before  and  after  the  improvement.  Into  this  labyrinth, 
externally  so  fair,  it  would  be  inadvisable  to  penetrate, 
except  to  remark  that,  as  a  practical  question,  it  is 
extremely  difficult  to  obtain  expert  witnesses  with  suffi- 
cient powers  of  generalization  to  state  a  difference  in 
market  values,  as  a  psychic  phenomenon  or  unrelated 
idea,  without  betraying  on  cross  examination  the  inad- 
missible sources  from  which  their  estimates  are  derived. 

In  response  to  the  demand  for  good  roads,  which  of 
late  years  has  become  more  insistent,  recent  legislation 
has  been  directed  to  the  improvement  of  the  condition 
of  the  public  highways  throughout  the  state.  A  begin- 
ning was  made  in  the  Act  of  June  26,  1895, -  which  author- 
ized the  county  commissioners  with  the  approval  of  the 
grand  jury  and  court  of  quarter  sessions,  to  cause  any 
particular  main  highway  to  be  improved,  and  for  that 
purpose  to  re-locate,  open,  straighten,  widen  or  alter 
the  same,  the  damage  to  property  to  be  assessed  by 
viewers.  The  highway  when  so  improved  is  a  town- 
ship or  borough  road,  the  duty  of  maintaining  which 
rests  on  the  locality.  By  an  amendment  of  April 
22,  1905,'  the  county  commissioners  are  required 
first  to  cause  to  be  laid  out,  surveyed  and  adopted  a 
system  of  main  thoroughfares,  taking  into  consideration 

^  Mellor    V.    Philadelphia,    IGO    Pennsylvania    Reports,    614 
(1894);  Melon  Street,  182  Pennsylvania  Reports,  397  (1897). 
'  P.  L.  336. 
»  P.  L.  290,  since  amended  by  the  Act  of  May  13,  1909,  P.  L.  527. 


270     EARLY  COURTS  OF  PENNSYLVANIA. 

the  needs  of  all  parts  of  the  county,  a  plan  of  such 
system  is  to  be  approved  and  recorded  and  thereafter 
all  applications  to  the  quarter  sessions  for  the  improve- 
ment of  a  road  under  the  act  are  to  be  restricted  to  the 
development  of  such  system. 

By  the  Act  of  April  15,  1903,^  a  state  highway  depart- 
ment was  established,  with  a  commissioner  at  its  head, 
who  is  authorized  to  co-operate  with  the  counties  and 
townships  in  the  reconstruction  and  improvement  of  the 
principal  highways  according  to  the  plans  adopted  by 
the  department,  the  cost  to  be  apportioned  and  borne, 
sixty-six  and  two  thirds  per  cent  by  the  state,  sixteen 
and  two  thirds  per  cent  each  by  the  county  and  town- 
ship, provided  that  amount  appropriated  for  state  aid 
shall  be  apportioned  among  the  counties  according  to 
their  road  mileage.  Six  million  five  hundred  thousand 
dollars  was  appropriated  to  carry  out  this  act,  to  be 
expended  during  six  years,  ten  per  cent  of  which  was 
to  be  set  aside  for  the  purpose  of  maintenance  where  the 
conditions  warranted  the  affording  of  state  aid  for  such 
purposes.  All  highways  constructed  or  improved  under 
the  provisions  of  this  act  are  to  be  known  as  State 
Highways. 

In  passing  rapidly  over  our  system  of  road  law  apolo- 
gies for  the  omission  of  much  that  is  of  interest  as  well 
as  of  importance  are  unnecessary.  The  subject  has 
reached  dimensions  that  can  hardly  be  contained  in  a 
text  book  of  reasonable  size.  The  extraordinary  num- 
ber and  variety  of  the  statutes,  with  the  decisions 
interpreting  them,  might  drive  a  Bent  ham  to  despair, 
but  has  caused  less  inconvenience  than  might  reason- 
ably be  expected,  for  the  reason  that  the  bar  of  the 
state  is  an  aggregation  of  county  bars,  each  familiar  with 
the  local  practice  and  with  few  opportunities  to  test 


1  P.  L.  ISS,  supplied  by  the  Act  of  May  1,  1905,  P.  L.  318. 


EARLY  COURTS  OF  PENNSYLVANIA.     271 

the  disadvantages  of  its  own,  or  the  advantages  of 
rival  systems.  Consequently  no  bar  sentiment  in  favor 
of  uniformity  and  simplicity  has  developed,  and  while 
there  is  no  inherent  difficulty  in  drafting  a  code,  or  series 
of  codes,  which,  with  the  repeal  of  all  local  acts,  would 
reduce  the  subject  to  order,  local  prejudices  and  con- 
servatism would  probably  oppose  such  a  movement. 
Minor  reforms  suggest  themselves.  The  assignment  of 
road  cases  to  the  quarter  sessions,  in  accordance  with 
colonial  tradition,  possesses  no  advantages,  and  is  con- 
trary to  the  modern  tendency  to  confine  the  activities 
of  that  court  to  criminal  matters. 

As  appeals  from  awards  of  viewers  to  the  common 
pleas  for  a  jury  trial  are  the  rule  rather  than  the  excep- 
tion, the  proceedings  should  have  their  inception  in  the 
latter  court,  as  in  change  of  grade  cases  under  the  Act  of 
1891.  There  is  no  reason  why  six  viewers  should  be 
appointed  to  assess  damages  for  the  opening  of  streets 
in  Philadelphia,  when  three  are  sufficient  in  change  of 
grade  cases,  except  to  gladden  the  hearts  and  replenish 
the  purses  of  the  additional  jurors.  The  method  of 
presenting  testimony  as  to  values  by  expert  witnesses  is 
far  from  satisfactory,  but  that  difficulty  belongs  to  the 
law  of  evidence  and  is  not  confined  to  road  cases. 

Time  may  improve  our  roads  and  our  road  laws,  but 
for  the  present  no  attorney  delighting  in  the  sharp  points 
of  the  law*  need  mourn  for  a  field  for  his  talents. 

Criticism  is  frequently  leveled  at  the  adventitious 
growth  of  our  law,  at  its  want  of  system,  its  atavistic 
tendencies.  But  is  this  not  true  of  other  sciences  as 
well?  Can  we  not  detect  traces  of  folklore  in  religion, 
of  magic  in  medicine  ?  The  deeper  the  foundations  of  a 
science  the  more  securely  is  it  buttressed  by  the  rubbish 
of  the  ages. 

Communities  do  not  grow  according  to  preconceived 
plans,  nor  does  progress  necessarily  point  to  a  prison 


272     EARLY  COURTS  OF  PENNSYLVANIA. 

luckstep  inarch  toward  a  Utopia  of  automatic  activities. 
But  in  law,  as  in  other  sciences,  there  must  be  periodic 
revision  of  the  accumulated  material,  otherwise  the  prin- 
ciples of  social  conduct  will  be  lost  sight  of  in  a  mass  of 
unrelated  and  arbitrary  rules.  Statutes  that  are  obso- 
lete should  be  repealed,  conflicting  statutes  reconciled, 
and  ambigTious  statutes  restated.  Local  and  special 
provisions  that  really  serve  no  useful  purpose  should, 
in  the  interest  of  orderly  administration,  be  replaced  by 
general  acts. 

The  present  state  of  the  statute  book,  representing  as  it 
does  the  accumulations  of  two  centuries,  is  far  from 
creditable  to  a  community  that  claims  to  be  progressive, 
and  should  be  subjected  to  systematic  revision,  if  only 
for  the  sake  of  clearness.  The  responsibility  for  this 
condition  does  not  rest  wholly  upon  the  bar  nor,  in  fact, 
upon  any  one  class  in  the  community.  It  results  from 
the  rapidity  of  our  material  development  and  the  recur- 
ring necessity  for  immediate  legislation,  coupled  with  a 
fallacious  belief  in  new  statutes  as  a  panacea  for  all  the 
ills  of  the  state.  The  disinclination  to  revise  what  has 
already  been  enacted  is  in  part  the  result  of  an  inherited 
conservatism,  an  unwillingness  to  tamper  with  what  is 
written  although  imperfectly  understood.  Purely  selfish 
interests,  too,  may  unite  to  disfigure  or  destroy  a  well 
conceived  plan  for  the  unification  of  a  branch  of  the 
statute  law,  as  happened  at  the  legislative  session  of 
1909  when  the  proposed  school  law  was  cut  to  pieces 
to  satisfy  conflicting  local  claims. 

Since  the  days  of  Bradford  and  Franklin  the  common- 
wealth has  relied  on  private  enterprise  for  compilations 
and  digests  of  the  statute  law.  But  these,  however 
creditable  to  their  editors,  cannot  take  the  place  of  a 
systematic  revision  authorized  by  the  state  and  ratified 
by  legislative  enactment.  The  private  editor  cannot 
say  that  any  law  is  obsolete,  he  must  print  what  he  finds. 


EARLY  COURTS  OF  PEXXSYLVANIA.     273 

If  he  undertakes  to  decide  that  an  act  is  repealed  or 
suppHed  by  impHcation  and  omits  it  from  his  text,  there 
is  no  assurance  that  his  opinion  will  be  endorsed  by  the 
courts. 

While  road  law,  owing  to  its  local  development,  is  a 
glaring  example  of  the  confusion  that  in  time  creeps 
into  the  statute  book,  it  is  by  no  means  the  only  title 
that  requires  attention.  The  laws  relating  to  corpora- 
tions, municipalities,  taxation,  as  well  as  other  subjects, 
are  in  need  of  revision  and  unification.  The  education 
of  the  public  to  the  economy  of  well  drafted  and  prop- 
erly classified  statutes  may  be  slow,  but  a  progressive  bar 
should  assist  in  that  education  and  be  prepared  to  lend 
encouragement  to  any  reasonable  and  practical  plan 
for  a  systematic  analysis  and  rearrangement  of  our 
statute  law. 


APPENDIX. 


ARTICLE    V    OF    THE    CONSTITUTION    OP 
PENNSYLVANIA. 

In    effect  Janiiary   1,    1S74. 


THE  JUDICIARY. 

The  Courts. 

Section  1.  The  judicial  power  of  this  Commonwealth  shall 
be  vested  in  a  Supreme  Court,  in  courts  of  Common  Pleas, 
courts  of  oyer  and  terminer  and  general  jail  delivery,  courts 
of  quarter  sessions  of  the  peace,  orphans'  courts,  magistrates' 
courts,  and  in  such  other  courts  as  the  General  Assembly  may 
from  time  to  time  establish. 

Supreme  Court — Tenure  of  Judges — Chief  Justice. 

Section  2.  The  Supreme  Court  shall  consist  of  seven  judges 
who  shall  be  elected  by  the  qualified  electors  of  the  State  at 
large.  They  shall  hold  their  offices  for  the  term  of  twenty-one 
years,  if  they  so  long  behave  themselves  well,  but  shall  not  be 
again  eligible.  The  judge  whose  commission  shall  first  expire 
shall  be  chief  justice,  and  thereafter  each  judge  whose  commis- 
sion shall  first  expire  shall  in  turn  be  chief  justice. 

V        Supreme  Court. 

Section  .3.  The  jurisdiction  of  the  Supreme  Court  shall  ex- 
tend over  the  State,  and  the  judges  thereof  shall,  by  virtue  of 
their  offices,  be  justices  of  oyer  and  terminer  and  general  jail 
delivery  in  the  several  counties ;  they  shall  have  original  jviris- 
diction  in  cases  of  injunction  where  a  corporation  is  a  party 
defendant,  of  habeas  corpus,  of  mandamus  to  courts  of  inferior 
jurisdiction,  and  of  quo  warranto  as  to  all  officers  of  the  Com- 
monwealth whose  jurisdiction  extends  over  the  State,  but  shall 
not  exercise  any  other  original  jurisdiction;  they  shall  have 
appellate  jurisdiction  by  appeal,  certiorari  or  writ  of  error  in  all 
cases,  as  is  now  or  may  hereafter  be  provided  by  law. 

Common  Pleas  Courts. 

Section  4.  Until  otherwise  directed  by  law,  the  courts  of 
common  pleas  shall  continue  as  at  present  established,  except 


27()  APPENDIX. 

as  herein  changed;  not  more  than  four  counties  shall,  at  any 
time,  be  included  in  one  judicial  district  organized  for  said 
courts. 

Judicial  Districts — Associate  Judges. 
Section  5.  Whenever  a  county  shall  contain  forty  thousand 
inhabitants  it  shall  constitute  a  separate  judicial  district,  and 
shall  elect  one  judge  learned  in  the  law ;  and  the  General  Assembly 
shall  provide  for  additional  judges,  as  the  business  of  the  said 
districts  may  require.  Counties  containing  a  population  less 
than  is  sufficient  to  constitute  separate  districts  shall  be  formed 
into  convenient  single  districts,  or,  if  necessary,  may  be  attached 
to  contiguous  districts  as  the  General  Assembly  may  provide. 
The  office  of  associate  judge,  not  learned  in  the  law,  is  abolished 
in  counties  forming  separate  districts;  but  the  several  associate 
judges  in  office  when  this  Constitution  shall  be  adopted  shall 
serve  for  their  unexpired  terms. 

Common  Pleas  Courts  in  Philadelphia  and  Allegheny 
Counties. 

Section  6.  In  the  counties  of  Philadelphia  and  Allegheny 
aU  the  jurisdiction  and  powers  now  vested  in  the  district  courts 
and  courts  of  common  pleas,  subject  to  such  changes  as  may 
be  made  by  this  Constitution  or  by  law,  shall  be  in  Philadelphia 
vested  in  four,  and  in  Allegheny  in  two,  distinct  and  separate 
courts  of  equal  and  co-ordinate  jurisdiction,  composed  of  three 
judges  each;  the  said  courts  in  Philadelphia  shall  be  designated 
respectively  as  the  court  of  common  pleas  number  one,  number 
two,  number  three  and  number  four,  and  in  Allegheny  as  the 
court  of  common  pleas  number  one  and  number  two,  but  the 
number  of  said  courts  may  be  by  law  increased,  from  time  to 
time,  and  shall  be  in  like  manner  designated  by  successive 
numbers;  the  nimiber  of  judges  in  any  of  said  courts,  or  in  any 
county  where  the  establishment  of  an  additional  court  may  be 
authorized  by  law,  may  be  increased  from  time  to  time,  and 
whenever  such  increase  shall  amount  in  the  whole  to  three,  such 
three  judges  shall  compose  a  distinct  and  separate  court  as 
aforesaid,  which  shall  be  numbered  as  aforesaid.  In  Philadelphia 
all  suits  shall  be  instituted  in  the  said  courts  of  common  pleas 
without  designating  the  number  of  said  court,  and  the  several 
courts  shall  distribute  and  apportion  the  business  among  them 
in  such  manner  as  shall  be  provided  by  rules  of  court,  and  each 
court,  to  which  any  suit  shall  be  thus  assigned,  shall  have 
exclusive  jurisdiction  thereof,   subject  to  change  of  venue,  as 


APPENDIX.  277 

shall  be  provided  by  law.  In  Allegheny  each  court  shall  have 
exclusive  jurisdiction  of  all  proceedings  at  law  and  in  equity, 
commenced  therein,  subject  to  change  of  venue  as  may  be 
provided  by  law. 

Prothonotary  of  Philadelphia — Court  Dockets. 

Section  7.  For  Philadelphia  there  shall  be  one  prothonotary's 
office,  and  one  prothonotary  for  all  said  courts  to  be  appointed 
by  the  judges  of  said  courts,  and  to  hold  office  for  three  years, 
subject  to  removal  by  a  majority  of  the  said  judges;  the  said 
prothonotary  shall  appoint  such  assistants  as  may  be  necessary 
and  authorized  by  said  courts;  and  he  and  his  assistants  shall 
receive  fixed  salaries,  to  be  determined  by  law  and  paid  by 
said  county;  all  fees  collected  in  said  office,  except  such  as 
may  be  by  law  due  to  the  Commonwealth,  shall  be  paid 
by  the  prothonotary  into  the  county  treasury.  Each  court  shall 
have  its  separate  dockets,  except  the  judgment  docket  which 
shall  contain  the  judgments  and  liens  of  all  the  said  courts,  as 
is  or  may  be  directed  by  law. 

Criminal  Courts  in  Philadelphia  and  Allegheny  Counties. 

Section  8.  The  said  courts  in  the  counties  of  Philadelphia  and 
Allegheny,  respectively,  shall,  from  time  to  time,  in  turn  detail 
one  or  more  of  their  judges  to  hold  the  courts  of  oyer  and  terminer 
and  the  courts  of  quarter  sessions  of  the  peace  of  said  counties, 
in  such  manner  as  may  be  directed  by  law. 

Common  Pleas  Judges  to  be  Justices  of  the  Peace. 

Section  9.  Judges  of  the  courts  of  common  pleas  learned  in 
the  law  shall  be  judges  of  the  courts  of  oyer  and  terminer,  quarter 
sessions  of  the  peace  and  general  jail  deUvery,  and  of  the  orphans' 
court,  and  within  their  respective  districts  shall  be  justices  of 
the  peace  as  to  criminal  matters. 

Judges  of  Common  Pleas  Courts  may  Issue  Writs  of  Certiorari. 

Section  10.  The  judges  of  the  courts  of  common  pleas,  within 
their  respective  counties,  shall  have  power  to  issue  writs  of 
certiorari  to  justices  of  the  peace  and  other  inferior  courts  not 
of  record,  and  to  cause  their  proceedings  to  be  brought  before 
them,  and  right  and  justice  to  be  done. 


278  APPENDIX. 

Justices  of  the  Peace  and  Aldermen. 

Section  11.  Except  as  otherwise  provided  in  this  Constitution, 
justices  of  the  peace  or  aldermen  shall  be  elected  in  the  several 
wards,  districts,  boroughs  and  townships  at  the  time  of  the 
election  of  constables  by  the  qualified  electors  thereof,  in  such 
manner  as  shall  be  directed  by  law,  and  shall  be  commissioned 
by  th-e  Governor  for  a  term  of  five  years.  No  township,  ward, 
district  or  borough  shall  elect  more  than  two  justices  of  the 
peace  or  aldermen  without  the  consent  of  a  majority  of  the 
qualified  electors  within  such  township,  ward  or  borough; 
no  person  shall  be  elected  to  such  office  unless  he  shall  have 
resided  within  the  township,  borough,  ward  or  district  for  one 
year  next  preceding  his  election.  In  cities  containing  over  fifty 
thousand  inhabitants,  not  more  than  one  alderman  shall  be 
elected  in  each  ward  or  district. 

Magistrates  in  Philadelphia. 

Section  12.  In  Philadelphia  there  shall  be  established,  for 
each  thirty  thousand  inhabitants,  one  court,  not  of  record, 
of  police  and  civil  causes,  with  jurisdiction  not  exceeding  one 
hundred  dollars;  such  courts  shall  be  held  by  magistrates  whose 
term  of  office  shall  be  five  years,  and  they  shall  be  elected  on 
general  ticket  by  the  qualified  voters  at  large ;  and  in  the  election 
of  the  said  magistrates  no  voter  shall  vote  for  more  than  two- 
thirds  of  the  number  of  persons  to  be  elected  when  more  than 
one  are  to  be  chosen;  they  shall  be  compensated  only  by  fixed 
salaries,  to  be  paid  by  said  county;  and  shall  exercise  such 
jurisdiction,  civil  and  criminal,  except  as  herein  provided,  as 
is  now  exercised  by  aldermen,  subject  to  such  changes,  not 
involving  an  increase  of  civil  jurisdiction  or  conferring  political 
duties,  as  may  be  made  by  law.  In  Philadelphia  the  office 
of  alderman  is  abolished. 

Fees,  Fines  and  Penalties. 

Section  13.  All  fees,  fines  and  penalties  in  said  courts  shall 
be  paid  into  the  county  treasury. 

Appeals  from  Summary  Convictions. 

Section  14.  In  all  cases  of  summary  conviction  in  this  Com- 
monwealth, or  of  judgment  in  suit  for  a  penalty  before  a  magis- 
trate, or  court  not  of  record,  either  party  may  appeal  to  such 


APPENDIX.  279 

court  of  record  as  may  be  prescribed  by  law,  upon  allowance 
of  the  appellate  court  or  judge  thereof  upon  catise  shown. 

Election  of  Judges — Removal. 

Section  15.  All  judges  required  to  be  learned  in  the  law, 
except  the  judges  of  the  Supreme  Court,  shall  be  elected  by  the 
qualified  electors  of  the  respective  districts  over  which  they  are 
to  preside,  and  shall  hold  their  offices  for  the  period  of  ten  years, 
if  they  shall  so  long  behave  themselves  well ;  but  for  any  reason- 
able cause,  which  shall  not  be  sufficient  ground  for  impeachment, 
the  Governor  may  remove  any  of  them  on  the  address  of  two- 
thirds  of  each  House  of  the  General  Assembly. 

Voting  for  Judge  of  Supreme  Court. 

Section  16.  Whenever  two  judges  of  the  Supreme  Court  are 
to  be  chosen  for  the  same  term  of  service  each  voter  shall  vote 
for  one  only,  and  when  three  are  to  be  chosen  he  shall  vote  for  no 
more  than  two;  candidates  highest  in  vote  shall  be  declared 
elected. 

Priority  of  Judges'  Commissions. 

Section  17.  Should  any  two  or  more  judges  of  the  Supreme 
Court,  or  any  two  or  more  judges  of  the  court  of  common  pleas 
for  the  same  district,  be  elected  at  the  same  time,  they  shall, 
as  soon  after  the  election  as  convenient,  cast  lots  for  priority 
of  commission,  and  certify  the  result  to  the  Governor,  who 
shall  issue  their  commissions  in  accordance  therewith. 

Compensation  of  Judges. 

Section  18.  The  judges  of  the  Supreme  Court  and  the  judges 
of  the  several  courts  of  common  pleas,  and  all  other  judges 
required  to  be  learned  in  the  law,  shall  at  stated  times  receive 
for  their  services  an  adequate  compensation,  which  shall  be  fixed 
by  law,  and  paid  by  the  State.  They  shall  receive  no  other 
compensation,  fees  or  perquisites  of  office  for  their  services 
from  any  source,  nor  hold  any  other  office  of  profit  under  the 
United  States,  this  State  or  any  other  State. 

Residences  of  Judges. 

Section  19.  The  judges  of  the  Supreme  Court,  during  their 
continuance  in  office,  shall  reside  within  this  Commonwealth; 
and  the  other  judges,  during  their  continuance  in  office    shall 


280  APPENDIX. 

reside  within  the  district  for  which  they  shall  be  respectively 
elected. 

Chancery  Powers  of  Common  Pleas  Courts. 

Section  20.  The  several  courts  of  common  pleas,  besides  the 
powers  herein  conferred,  shall  have  and  exercise  within  their 
respective  districts,  subject  to  such  changes  as  may  be  made 
by  law,  such  chancery  powers  as  are  now  vested  by  law  in 
the  several  courts  of  common  pleas  of  this  Commonwealth, 
or  as  may  hereafter  be  conferred  upon  them  by  law. 

Supreme  Court — Extra  Judicial  Duties — Court  of  Nisi  Prius 
Abolished. 

Section  21.  No  duties  shall  be  imposed  by  law  upon  the 
Supreme  Court  or  any  of  the  judges  thereof  except  such  as  are 
judicial,  nor  shall  any  of  the  judges  thereof  exercise  any  power 
of  appointment  except  as  herein  provided.  The  court  of  nisi 
prius  is  hereby  abolished,  and  no  court  of  original  jurisdiction 
to  be  presided  over  by  any  one  or  more  of  the  judges  of  the 
Supreme  Court  shall  be  established. 

Orphans'    Courts — Auditing    of    Accounts — Registers'    Courts 
Abolished. 

Section  22.  In  every  county  wherein  the  population  shall 
exceed  one  hundred  and  fifty  thousand  the  General  Assembly 
shall,  and  in  any  other  county  may,  establish  a  separate  orphans' 
court  to  consist  of  one  or  more  judges  who  shall  be  learned  in  the 
law,  which  court  shall  exercise  all  the  jurisdiction  and  powers 
now  vested  in  or  which  may  hereafter  be  conferred  upon  the 
orphans'  courts,  and  thereupon  the  jurisdiction  of  the  judges  of 
the  court  of  common  pleas  within  such  county,  in  orphans' 
court  proceedings,  shall  cease  and  determine.  In  any  county 
in  which  a  separate  orphans'  court  shall  be  established,  the 
register  of  wills  shall  be  clerk  of  such  court  and  subject  to  its 
directions  in  all  matters  pertaining  to  his  office ;  he  may  appoint 
assistant  clerks,  but  only  wdth  the  consent  and  approval  of 
said  court.  All  accounts  filed  with  him  as  register  or  as  clerk 
of  the  said  separate  orphans'  court  shall  be  audited  by  the 
court  without  expense  to  parties,  except  where  all  parties  in 
interest  in  a  pending  proceeding  shall  nominate  an  auditor 
whom    the    court   may,    in   its   discretion,    appoint.      In   every 


APPENDIX.  281 

county  orphans'  courts  shall  possess  all  the  powers  and  juris- 
diction of  a  registers'  court,  and  separate  registers'  courts  are 
hereby  abolished. 

Style  of  Process. 

Section  23.  The  style  of  all  process  shall  be  "The  Common- 
wealth of  Pennsylvania."  All  prosecutions  shall  be  carried  on 
in  the  name  and  by  the  authority  of  the  Commonwealth  of 
Pennsylvania,  and  conclude  "against  the  peace  and  dignity  of 
the  same." 

Right  of  Appeal  in  Criminal  Cases. 

Section  24.  In  all  cases  of  felonious  homicide,  and  in  such 
other  criminal  cases  as  ma}''  be  provided  for  by  law,  the  accused 
after  conviction  and  sentence  may  remove  the  indictment, 
record  and  all  proceedings  to  the  Supreme  Court  for  review. 

Vacancies  in  Court — How  Filled. 

Section  25.  Any  vacancy  happening  by  death,  resignation 
or  otherwise,  in  any  court  of  record,  shall  be  filled  by  appoint- 
ment by  the  Governor,  to  continue  till  the  first  Monday  of 
January  next  succeeding  the  first  general  election  which  shall 
occur  three  or  more  months  after  the  happening  of  such  vacancy. 

Laws    Relating    to    Courts    to    be    Uniform — Special    Courts 
Forbidden. 

Section  26.  All  laws  relating  to  courts  shall  be  general  and 
of  uniform  operation,  and  the  organization,  jurisdiction  and 
powers  of  all  courts  of  the  same  class  or  grade,  so  far  as  regulated 
by  law,  and  the  force  and  effect  of  the  process  and  judgments  of 
such  courts,  shall  be  uniform;  and  the  General  Assembly  is  here- 
by prohibited  from  creating  other  courts  to  exercise  the  powers 
vested  by  this  Constitution  in  the  judges  of  the  courts  of  common 
pleas  and  orphans'  courts. 

Submission  of  Issues  of  Fact. 

Section  27.  The  parties,  by  agreement  filed,  may  in  any  civil 
case  dispense  with  trial  by  jury,  and  submit  the  decision  of  such 
case  to  the  court  having  jurisdiction  thereof,  and  such  court 
shall  hear  and  determine  the  same;  and  the  judgment  thereon 
shall  be  subiect  to  writ  of  error  as  in  other  cases. 


INDEX. 


"Active,"  case  of  the,  127 
Acts  of  assembly: 

disallowed,  76,  82,  93,  97, 
99,    170,    175,   177,  229, 
231,   249 
submission     to     king     in 
council,   50,   82 
Ad  quod  damnum,  243 
Addison,  Alexander: 

characteristics  of,    141 
impeached,  142 
Admiralty: 

chancery    jurisdiction    in, 

181 
federal  court  of,  128 
provincial  council  as  court 

of.  68 
state  court  of,  126 
vice  admiralty    court    es- 
tablished, 69 
Affirmations,  85,  86 
Allen,  Williani,  108,  190 
Amsterdam,  colony  of  the  city 

of,  5 
Andros,  Governor,  23,  164,  216 
Appeals: 

from  Dutch  courts,  7 

to   high    court    of   errors, 

128,  134,  136 
to  privy  council,  71,  82,  84 
to  provincial  council,  65 
under  the  Duke  of  York, 
17,  29 
Arbitration,  15, -48 
Assheton,    Robert,    113,     175, 

231 
Assizes,  court  of,  16,  29,  163 
Attachment,  37 
Attorney  general,  113 


A  ttorneys-at-law : 

eariy  bar,  110-115 
examinations,  119 
students,  1 1 7 
subsequent  to  Revolution, 
154 

Bar  (see  Attorneys-at-law) 
Binney,  Horace,  155,  208 
Blackstone's       Commentaries, 

119 
Brackenridge,    Judge    H.    H., 

142,  147 
Bradford,  Judge  WilHam,   131 
Butler  county,  first  court  held 

in,  151 

Carr,  Sir  Robert,  9,  11 
Censors,  council  of,  124,  129 
Chancery,  court  of,  179,  193 
Charles  II,  40 
Cliarter: 

of  privileges   of    1701,   73, 

184 
to  William  Penn,  41 
Chew,  Benjamin,  108,  121,  134 
Clark,  WilHam,  218 
Circuit  courts,  135,  138 
Codes,     colonial     tendency 

toward,  10,  14 
Conmiission  to  revise  the   civil 
code: 

appointment,  155 
report     on     equity    juris- 
diction, 196 
on  orphans'   court,   235 
Commissions  of  judges,  102 
Common  law,   as  a   subsidiary 
system   in   the   colonies,    13, 
103 


284 


INDEX. 


Conditional  verdict,  28,  20S 

Constable,  19 

Constitution  of  1874,  judiciary 

article,  275 
Constitutional  convention : 

of  1776,  122,  123 

of  1790,  132 
Coroner,  73 

Counties,  Penn's  division,  47 
Court  house: 

Philadelphia,  108 

Westmoreland    county, 
151 
Criminal  law,    52,   56,   86,   90, 
131 

Deal  court,  35 

Decedents'  debts,  sale  of  land 

for  payment  of,  226 
Decedents'     estates     (see    Or- 
phans' court   and  Registers' 
court) 
Dickinson,  John,  117,  120,  129, 

130 
Disorder,    complaints   against, 

88 
District  court  of  Philadelphia, 

137 
Divorce: 

acts  of  1700  and  1705,  100 
in  the  Dutch  period,  6 
private  acts,  101 
under     Duke     of     York's 
laws,  99 
Doan,  Aaron,  outlawry  of,  130 
Ducking  stool,  89 
Duke  of  York  (James  II) : 
proprietorship  of,  9 
conveys  territory  to  Penn, 
41 
Duke   of    York's  laws,  10,  23, 

25,  162,  216 
Dutch : 

court  on  the  Delaware,  3 
West  India  Company,  3,  5 


Ejectment,  76,  204 
Eminent  domain,  245 
English : 

citation  of  cases  forbidden, 

150 
conquest  of  New  Nether- 
lands, 9 
statutes  in  force,    13,    14, 
103 
Equity  jurisprudence: 

colonial  difficulties,  159 
com.mon-law    forms,    190, 

201 
confined     to     Supreme 

Court,  176 
constitution  of  1776,   192 
constitution  of    1790,   194 
county  courts,  167 
court   of  assizes,    163 
Keith's  court,     177,     179, 

181 
petitions  against,    184 
private  acts,  191 
provincial  cotmcil,  166 
recommendations  of  com- 
missioners in  1835,   196 
resolutions  of  general  as- 
sembly, 185 
rules   of    Suprenje    Court, 

200 
Welsh    courts    as    a    pre- 
cedent, 172,  174 
Erie  and  Bradford  counties: 

road  system.,  267 
Evans,  Governor,  80 
Examinations  for  the  bar,  119 
Execution,  in  civil  cases,  55 
Executions,  public,  131 
Executive  clemency,  131 

Finne,  Long,  31 
Fletcher,  Benjamin,  50,  222 
Frame  of  government,  42 
Francis,  Tench,  115 


INDEX. 


285 


Franklin,  Benjamin,  107,  129 
Friends,  society  of: 

affirmations,  85 

arbitration,  49 
Fundamental  laws,  45 

Gambling  contract,  39 

Gibson,  John  Bannister,  153 

Golf,  246 

Gookin,  Governor,  81,  220 

Gordon,  Patrick,  183,  185 

Grand  jury,  90 

Guest,  Chief  Justice,  171 

Hamilton,  Andrew,    115,    188, 

189 
High     court     of     errors    and 

appeals,  128,   134,  136 
Highways  (see  Roads) 
Holme,  Thomas,  250 
Hopkinson,  Francis,  119,  127 

Impeachment: 

Judge  Addison,  142 
Judge  Hopkinson,  127 
Chief  Justice  Moore,  59 
Supreme    Court    justices, 
143 

Jacquet,  Jean  Paul,  3 
James  II  (see  Duke  of  York) 
Jealousy  of  the  courts,  139 
Jones,  Joel,  155 
Judges: 

commissions,  102 

fined     for    giving    wrong 

judgment,  64 
fined  for  non-attendance, 

47 
fined  for  smoking  in  court, 

53 
forbidden  to  cite  English 
cases,    1 50 


Judges  (cont.) : 

required    to    file  opinions 

in  writing,   136 
salaries,  104,  134 
term    of    office,    98,.    123, 
133,    149 

Judgments,  entered  in  kind,  36 

Judicial    committee    of    privy 
council,   85 

Judicial  districts,  7,  133 

Judiciary: 

constitution  of  1776,  123 
constitution  of  1790,  132 
constitution  of  1874,  275 

Jur>': 

of  seven,  20 
trial  without,  55 
viewers,  253,  255,  260 

Justices  of  peace,    civil  juris- 
diction, 105,  157 

Keith,  Sir  William: 

dispute  with   collector  of 

customs,  96 
establishes  court  of  chan- 
cery, 177 
restores  English  criminal 
law,  86 
Kinsey,  John,  107,  180,  183 

La  Grange,  Arnoldus,  27 
Land: 

liable  for  debts,  28,  226 
six  per  cent  allowance  for 
roads,  249 
Laussat,  Anthony,  196 
Lawyers  (see  Atto'meys-at-law) 
Liquor  licenses,  18 
Lloyd,   David,  70,  75,  79,  92, 

107,  112,  172,  177,  189 
Logan,  James,  49,  79,  107,  180, 
185,  187 


28G 


INDEX. 


McKcan,    Thomas,     1:25,     139, 

152,    190 
Mann,  Abraham,  30,  61,  113 
Markham,  William,  42,  69 
Moll,  John,  30,  46 
Mompesson,  Roger,  78,  104 
Moore,  John,  96 
Moore,  Nicholas,  59 
Mortgage,  foreclosure  of,  38 

Negligence,  38 

Negroes,  court  for  trial  of,  105 

New  Amstel,  5,  7,  9 

New  Castle,  22,  47 

New  Netherlands,  9 

Nicholls,  Governor,  11,  12 

Nisi  prills,  129,  135 

Oaths,  judicial,  86 
Ordinance,    courts  established 

by,  80 
Orphans'    court,    57,    82,    225, 
230,  236,  239 

early  practice,  231 
equity  jurisdiction,  232 
of  London,  223 
report    of    commissioners 
to  revise  civil  code,  235 
Outlawry,    process    regulated, 
131 

Pappegoya,    Jeuffro    Armgart, 

25 
Pardons,  87,  131 
Partition,  182,  199 
Passmore,  Thomas,  143 
Peacemakers,  48 
Penn,  William,  40,  42,  46,  48, 

51,  74,   166,  226,  248,  250 
Petit  treason,  91 
Philadelphia,    108,    138,    154, 

250 
Piracy,  69,  71 


Pittsburg,  136,  138,  266 
President  Judge,  105 
Printz,  John,  2,  25 
Prisons,  56 

Privy  council  appeals,  72,  84 
Probate,  214,  222 
Procedure : 

under  Duke  of   York,    19, 

29,  35 
under  William  Penn,   44, 
45,  49,  52,  54 
Provincial  council: 

admiralty  jurisdiction,  68 
as  principal  court,  62-67 
equity    jurisdiction,     169, 

178 
road  matters,  251 
Provincial  court  (see  Supreme 
Court),  57,  67 

Quakers : 

affirmations,  85,  86 

arbitration,  48 

Massachusetts     laws 
against,  12 
Quarry,  Robert,  69 

Ravvle,  William,  155 
Reed,  Joseph,  117,  129 
Register  general,  217 
Register's  court,  220,  236,  239 
Reviews    of    provincial    roads, 

25S 
Revision   of     civil    code,    155, 

197,   236,   259 
Roads : 

act  of  1700,  254 

act  of  1836,  259 

borough  streets,  267 

classes  of,  256 

consequential   damages, 
268 


INDEX. 


287 


Roads  {cont.) : 

in  England  in  eighteenth 

century,  241 
in   the    New    Netherlands, 

245 
jurisdiction    of   provincial 

council,  251 
local  acts,  262 
measure    of     landowners' 

damages,  269 
Penn's  provisions,  248 
recent  legislation,  269 
reviews,  258 
state  roads,  261 
streets     in     Philadelphia, 

263 
streets  in  Pittsburg,  266 
tmder  the  Duke  of  York, 

247 

vocation,  260 

widening,  260 

Robinson,  Patrick,  61,  113,  219 

Ross,  George,  125 

Rules  of  court,  53 

Schepens,  5 
Schout,  5 

Scolds,  common,  89 
Sessions,  courts  of,  17 
Set-ofT,  3,  54,  208 
Shippen,  lidward,  129,  141 
Six    per    cent    allowance    for 
roads,  249 


Slander,  35 

Stocks,  54 

Streets  (see  Roads) 

Superior  Court,  157 

Supreme    Court,    80,    94,    98, 

136,    137,    138,    176 
Suspension    of    courts    during 

Revolution,  125 
Swedish  court,  2 

Tilghman,  Edward,    118,    152 

Tilghman,  William,  152 

Tinicum  Island,  25 

Town  court,  19 

Treason  trials,  126 

Trials  in  banc  abolished,  136 

Upland  court,  7,  34 

Verdict,  conditional,  28,  208 

Western  Pennsylvania,  primi- 
tive courts  of,  151 
Westmoreland  county,  151 
Wharton,  T.  I.,  155 
White,  John,  113 
Whorekill,  7,  35,  47 
Wilson,  James,  126,  193 
Witchcraft,  67 

Yeates,  Jasper,  148 

Zenger,  Peter,  116 


000  769  806 


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